Delhi District Court
Pramod Kumar Singh vs Ms Bses Yamuna Power Ltd on 12 March, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-001208-2012
Ref. No. F.24 (60)/Lab./ED/2012/1566 Dated 06.08.2012
LIR No. 4384/2016
Sh. Parmod Kumar Singh, S/o Sh. Megh Singh
R/o B-8/12, Gali no. 2,
B Block, Sadatpur Extension,
Delhi-110094.
Through:- Sh. Narender Thakur (Adv.)
Ch. No. G-720, 7th Floor,
Karkadooma Court Complex, Shahdara,
Delhi-110032 ..... Workman
VERSUS
(1) M/s BSES Yamuna Power Ltd., (Principal Employer)
Shakti Kiran Building, Karkadooma, Shahdara,
Delhi-110032
(2) M/s Mahindra Logistics Ltd. (Contractor)
Plot no. 992, Kapashera Border, New Delhi
(3) M/s Orion Security Solutions (Contractor)
5-E, 1st floor, Jungi House, Street No. 5, Near
BSES Power Station, Shahpur Jat, New Delhi
(4) M/s Wheel Force,
Lalita Park, Laxmi Nagar,
Delhi-110092
(5) M/s Shiv Travels
and
(6) M/s Jai Mata Travels,
Naveen Complex, N.H.-8, Rangpuri,
New Delhi-110037 .....Managements
Date of Institution of the case : 12.09.2012
Date on which Award is passed : 12.03.2024
AWARD
LIR No.4384/2016
Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors
Award dated 12.03.2024 Page 1 of 33
1. The workman namely Sh. Pramod Kumar Singh named above raised
an industrial dispute before the Labour Department against the
termination of his services by the management claiming that his services
have been terminated by the management illegally and unjustifiably and
the appropriate Government on being satisfied with regard to existence of
an industrial dispute between the parties, referred the dispute to the Court
for adjudication under Section 10(I)(c) and 12(5) of the Industrial
Disputes Act vide Ref. No. Ref. No. F.24 (60)/Lab./ED/2012/1566 Dated
06.08.2012 with the following terms of reference:-
"Whether services of Sh. Parmod kumar Singh S/o
Sh. Megh Singh have been illegally and/ or
unjustifiably terminated by the managements; and if
yes, to what relief is he entitled ?"
2. The statement of claim has been filed on behalf of the workman on
01.11.2012 alleging therein that workman had been working with the
managements since 01st June, 2004, as driver against last drawn salary of
Rs. 7,190/- per month. The workman claimed that the managements have
illegally terminated his services on 30.04.2012 and have failed to
reinstate the workman in service despite service of demand notice dated
05.05.2012. Hence, the present claim has been filed by the workman
before this court inter-alia praying for his reinstatement with full back
wages and continuity of services besides other benefits while alleging
that he is unemployed since the date of his termination.
LIR No.4384/2016
Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors
Award dated 12.03.2024 Page 2 of 33
3. Notice of statement of claim was thereafter issued to the
managements in terms of order dated 22.11.2012 and upon service, a
written statement was filed on behalf of management no. 1 on 22.05.2013
thereby refuting the claim of the workman on the ground that no
relationship of employee-employer had ever existed between the
workman and management no. 1. It is further alleged in the written
statement that the workman was an employee of independent contractor/
respondent no. 5 M/s Shiv Travels, who had been providing its services
to management no. 1 to carry out its contractual responsibilities in terms of the service agreement between management no. 1 and management no.5. It is further alleged in the written statement that the workman was working under direct control and supervision of M/s Shiv Travels, who was fully and solely responsible for allocation of work as well as for compliance with all statutory obligations under the applicable labour laws.
4. Separate written statement was filed on behalf of management no. 2 on 08.04.2013 refuting the claim of the workman on account of non existence of any employer-employee relationship between management no. 2 and the workman. It has further been alleged by management no. 2 that it was having a fixed term agreement with management no.1 for providing maintenance services of the vehicles of management no. 1 alongwith drivers and the aforesaid contract had already expired in march 2010 and thereafter was never renewed. It is further the case of LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 3 of 33 management no. 2 that it had executed back to back co-terminus agreements with its business associates i.e. Management no. 3 and management no. 4 to provide the aforesaid services to the management no. 1 and it was their responsibility to ensure all statutory compliances.
5. Another written statement was filed on behalf of management no. 3 on 23.07.2013, wherein, the management no. 3 has also denied the relationship of employer and employee between management no. 3 and the workman and has alleged that it was the management no. 2, who was having a fixed term contract with the management no. 1, who had executed back to back agreement with management no. 3 which had expired way back in the month of March 2009 and no fresh agreement was thereafter executed between them. It has further been alleged by management no. 3 that all the drivers and vehicles belonged to management no. 1 and the workman was working under direct control and supervision of management no.1 and 2, whereas, management no. 3 had no supervisory control over the workman.
6. Management no. 5 has also filed a separate written statement alleging therein that it was having a fixed term contract for supply of man power with management no. 1 for one year w.e.f. 01.04.2011 to 31.03.2012 and the workman was doing his duty with management no. 1 during the aforesaid period on behalf of management no. 5 and after expiry of the contract of management no. 5 with management no. 1, the LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 4 of 33 workman was asked to report to the Head Office of management no. 5 vide letter dated 09.04.2012, however, he had failed to report to the head office of management no. 5.
7. Separate written statement was also filed on behalf of management no. 6 M/s Jai Mata Travels, who has again disputed the claim of the workman on the ground that the workman had never been an employee of the management no. 6.
8. Respective rejoinders to the aforesaid written statements of the managements were filed on behalf of the workman, wherein, the workman has once again reiterated the averments made by him in his statement of claim and has denied the contrary averments made by the managements in their respective written statements. In his rejoinder to the written statement of management no. 1, the workman has alleged that he had been working under the direct control and supervision of management no. 1 and even as per the Contract Labour (Regulation and Abolition) Act, 1970 it was the duty of management no. 1, being the principal employer, to see that all statutory obligations are fulfilled by the contractor, however, management no. 1 has failed to ensure the same.
9. In his rejoinder to the written statement of management no. 2, the workman has alleged that, being the main contractor, it was the responsibility of management no.2 to ensure statutory compliances on the LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 5 of 33 part of sub contractors i.e. managements no. 3 and 4. It has further been alleged by him that he used to work for management no. 2 and drive the vehicle owned by management no. 1 since long on a regular basis, however, during his service tenure with management no. 1, the managements used to show the workman as an employee of different contractors on various occasions.
10. In his rejoinder to the written statement of management no. 3, it was stated by the workman that the agreement between managements no.1 to 3 continued until March 2010 and hence he remained an employee of the management no. 3 until March 2010 and thereafter, he remained under employment of others.
11. In his rejoinder to the written statement of management no. 5, it has been alleged by the workman that he had been under the employment of management no.1 since long, however, management no.1 used to show the workman as an employee of different contractors for different period. It has further been alleged by him that he had never worked as ad hoc worker with any of the contractors and remained in regular and continuous employment as a permanent employee since the date of joining till termination of his services. He has denied the receipt of any letter dated 09.04.2012 from the management no.5.
12. In his rejoinder to the written statement of management no.6, it has LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 6 of 33 been alleged by the workman that there existed the employer-employee relationship between management no. 6 and the workman and he is having proof of the same which shall be produced at an appropriate stage.
13. Thereafter, on the basis of the pleadings of the parties, following issues were settled by the Ld. Predecessor of this Court vide order dated 07.11.2014:-
(i) Between workman and which of the managements and for what period there existed relationship of employee and employer
(s)?
(ii) In terms of reference
14. Workman has thereafter examined himself as WW-1 i.e. as the sole witness in support of his case and has tendered his evidence by way of affidavit Ex. WW1/A alongwith following documents:-
(i) Ex.WW1/1: Legal Demand notice dated 05.05.2012.
(ii) Ex.WW1/2: Postal receipts.
(iii) Ex.WW1/3 (colly): Identity cards.
(iv) Ex.WW1/4: Copy of identity card issued by ESI Corporation.
(v) Ex.WW1/5: Complaint to Provident Fund Commissioner dated 04.05.2012 against the managements.
(vi) Ex.WW1/6: Application under Right to Information Act, 2005
(vii) Ex.WW1/7: Letter dated 04.04.2013 sent by Public Information Officer under Right to Information Act, 2005.
(viii) Ex.WW1/8: Report dated 12.10.2012 issued by Labour Inspector.
LIR No.4384/2016Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 7 of 33
(ix) Mark-A: Copy of email dated 15.05.2009 of management no. 1 regarding Contract for Fleet Management Services for the financial year 09-10 (April 09-March-10).
(x) Mark-B: Copy of attendance register of BSES
(xi) Mark-C (colly): Copy of logbook of vehicle driven by workman
15. WW-1 was duly cross-examined by Ld. ARs for management no. 1, 2, 5 and 6, whereas, management no. 3 & 4 were proceeded ex-parte vide order dated 28.05.2022. Thereafter, on a separate statement of workman, workman's evidence was closed vide order dated 28.05.2022.
16. Management no. 1 has thereafter examined Sh. Manoj Kumar Sharma, its Manager (HR) as M1W1, who has tendered his evidence by way of affidavit Ex. MW1/A alongwith his authority letter Ex. MW1/1, copy of agreement between management no. 1 and management no. 5 Ex. MW1/2 (colly) and the copy of registration certificate and license under the Contract Labour(Regulation and Abolition Act, 1970 Ex. MW1/3 (colly).
17. Sh. Pradeep Kumar, Sr. SSA, EPFO has been examined by management no. 1 as M1W2, who has produced his authority letter Ex. M1W2/1 and Subscriber Ledger Card for the year 2010-11 to 2012-13 pertaining to co-workers of the workman Sh. Deepak Kumar and Sh. Ramjeet Singh Ex. M1W2/2.
LIR No.4384/2016Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 8 of 33
18. Sh. Manoj Kumar, Sr. SSA, EPFO has been examined by the management no. 1 as M1W3, who has produced his authority letter Ex. M1W3/1 and Subscriber Ledger Card for the year 2009-10 to 2012-13 pertaining to the workman and his co-workers of the workman namely Sh. Manoj Nagar, Sh. Bhupender Pal, Sh. Manoj, Sh. Parmod Kumar Singh, Sh. Sanjay Kumar, Sh. Laxmi Chand, Sh. Gyanendra Singh and Sh. Ajay Pal Ex. M1W3/2 (colly).
19. Sh. Sanjay Chandani, Sr. Assistant ESIC Branch Office Kishanganj, Delhi has been examined by the management no. 1 as M1W4, who has produced the contribution record for the year 2011 to 2013 of the co- workers of the workman namely Sh. Deepak Kumar and Sh. Ramjeet Singh Ex. M1W4/1 (colly).
20. Sh. Rahul Kumar Meena, UDC from ESIC Branch Office Palam has been examined by the management as M1W5, who has produced the record of ESIC contribution by M/s Shiv Travels for the period 2011- 2013 of his employees Ex. M1W5/A (colly).
21. All the aforesaid witnesses examined on behalf of management no. 1 were duly cross-examined by Ld. AR for workman and thereafter, on the statement of AR of management no. 1, evidence on behalf of management no. 1 was closed vide order dated 12.10.2023.
22. No witness has been examined on behalf of remaining managements LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 9 of 33 and the evidence on behalf of managements no. 2, 5 and 6 was closed on the submissions of the managements/ their ARs vide orders dated 23.02.2023, 11.05.2023 and 11.05.2023 respectively, whereas, management no. 3 and 4 were proceeded ex-parte vide order dated 28.05.2022.
23. Final arguments were accordingly heard on behalf of the workman and managements no. 1, 2, 3, 5 and 6 on 21.02.2024.
24. It is submitted by Ld. AR for workman that the workman had all along been employed with Management no. 1 BSES Yamuna Power Ltd since 01.06.2004 as driver until the termination of his services w.e.f. 30.04.2012 and it is merely in order to defeat the legal claim of the workman in the present statement of claim that the managements are taking false pleas of the employment of the workman by the managements no. 2 to 6 as contractors.
25. He submits that admittedly management no. 1 was not registered under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, nor either of the alleged contractors i.e. managements no. 2 to 6 were having any license under the provisions of the aforesaid Act. While relying upon judgment of Hon'ble Delhi High Court in ICIC Prudential Asset Management Company Ltd (M/s) v. Union of India 2012 LLR 245, it is submitted by him that even though there is no notification under LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 10 of 33 Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 abolishing the contract labour in the establishments similar to the establishments run by the Management no. 1, this Court has the jurisdiction to determine whether the contracts purportedly awarded by the management in favour of the alleged contractors i.e. Managements no. 2 to 6 were really camouflage or sham.
26. Moreover, while relying upon the judgment of Hon'ble Supreme Court of India in Secretary, Haryana State Electricity Board Vs. Suresh and Ors Etc 1999 LLR 433, it is submitted by him that in the absence of any registration of management no. 1 as the "principal employer" and in the absence of any license in favour of managements no. 2 to 6 under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, the workman, even though, assumed to be employed by the alleged contractors shall be deemed to be under direct employment of management no. 1. It is further submitted by him that in any case since the workman had been working under the direct control and supervision of management no. 1, he shall be considered to be an employee of management no. 1 alone and since his services have been terminated illegally by the management, he is entitled to his reinstatement with full back wages and continuity of service. In support of his submissions, Ld. AR for workman has also relied upon the following judgments:
(i) M/s Prabha Engineering Private Ltd Vs. Sarva Mazdoor Sangh LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 11 of 33 and Ors 2018 LLR 828 (Bombay High Court)
(ii) ICI (India) Ltd (formerly I.E.L. Ltd) Fertilizer Division, Panki, Kanpur Vs. State of UP and Ors. 2012, LLR 878(Allahabad High Court).
(iii) Bosch Ltd Naganathapura Plant Vs. Labour through Karnataka Rakshak and General Wokers' Union 2019 LLR 423(Karnataka High Court)
(iv) Employers in Relation to... Vs. Presiding Officer, Central 1999 (47) BLJR 2105 (Patna High Court)
27. On the other hand, it is submitted by Ld. AR for management no. 1 that the claimant has impleaded as many as 06 respondents in his statement of claim without specifying the name of the respondents with whom he was allegedly employed. Nor, according to him, the workman has pointed out the period during which he remained employed with respective respondents. It is further submitted by him that the workman has even failed to allege that the contracts, between the respondent no.1 on the one hand and remaining respondents on the other, were either sham or bogus nor any such reference has been made by the appropriate Govt. to this Court. He submits that in the absence of any specific reference regarding the contracts between the respondents being sham or bogus and specific averments in the statement of claim filed on behalf of the workman to the aforesaid fact, the workman cannot be permitted to take a plea either in his rejoinders to the written statements filed on behalf of managements or in his evidence by way of affidavit that he was either LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 12 of 33 under the direct employment with management no. 1 till the date of his alleged illegal termination or that though he was employed by the contractors, however, he should be treated as a direct employee of management no. 1, the contracts between the managements being sham and bogus.
28. He further submits that not only the Management no. 1 was duly registered under the Contract Labour (Regulation and Abolition) Act, 1970 but even the contractor/management no. 2 was having valid license issued under the provisions of the aforesaid Act. He submits that the copy of registration certificate of management no. 1 and of the license of Management no. 2 have already been tendered by M1W1 in his evidence as Ex. MW-1/3(colly). He submits that the workman has failed to produce even a single document to prove his employment with management no. 1 and hence, the present claim is liable to be dismissed against respondent no. 1.
29. Similarly, it was submitted on behalf of management nos. 2 and 3 that not even an iota of evidence has been led on behalf of the workman to prove the existence of any employer-employee relationship between the parties as on the date of alleged termination of the services of the workman.
30. So far as respondent nos. 5 and 6 are concerned, it has been LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 13 of 33 submitted on their behalf that the management no. 6 had no concern whatsoever with the present workman. He submits that it is not even the case of the workman, as per his pleadings, that either he had been the employee or was working under direct control and supervision of management no. 5 and hence, his claim against respondent no. 5 is not maintainable. He has further pointed out that though in his cross- examination by management no. 1, workman has taken a plea that he had lastly worked with management no. 5 and his salary as well as PF and ESI contributions were being paid by management no. 5, however, during his cross-examination by management no. 5, he has categorically denied any relationship with management no. 5. Thus, according to him, the Court cannot pass any award against respondent no. 5.
31. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record. My issue-wise findings on the issues settled by Ld. Predecessor of this Court vide order dated 07.11.2014 are as follows:-
Issue no. (i): Between workman and which of the managements and for what period there existed relation of employee and employer (s)?
32. A bare perusal of the statement of claim of the workman shows that the workman has failed to specifically allege that he was employed by any specific management, out of managements no. 1 to 6, nor is there any LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 14 of 33 reference in the entire statement of claim of the workman to any specific period, during which, he remained employed with either of the aforesaid managements. He has also failed to point out the name of the management who has actually terminated his services w.e.f. 30.04.2012. The workman has vaguely alleged that he was in employment of managements since 01.06.2004 as a driver on last drawn wages of Rs. 7,190/- per month till the date of termination of his services by the managements w.e.f. 30.04.2012.
33. In my considered opinion, for the purposes of Industrial Disputes Act, 1947, a workman cannot be under employment of as many as 6 managements simultaneously. As per the statement of claim, it is not even his case that the management no. 1 was the principal employer, whereas, the managements no. 2 to 6 were the contractors of the management no. 1 under the sham and bogus contracts and hence, he should be presumed to be under direct employment of management no. 1.
34. Under the aforesaid circumstances, in my considered opinion, onus to prove that the workman was the employee of either of the six managements, impleaded by him in his statement of claim, as on the date of alleged termination of his services was upon the workman, however, the workman has failed to lead any evidence on the aforesaid issue. In fact, in the absence of any specific pleadings of the workman to the effect that he was under direct employment of either of the six managements, as LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 15 of 33 on the date of alleged termination of his services, in my considered opinion, he could not have led any evidence on the aforesaid issue since the same would have been beyond his pleadings.
35. Be that as it may, managements no.1,2,3,5 and 6 have filed separate written statements to the claim of workman. In their written statements, managements no. 1, 2,3 and 6 have categorically denied the existence of any employer-employee relationship between them on the one hand and the workman on the other. As per the written statements of management no. 1 and 5, the management no. 1 had awarded a contract for the period 01.04.2011 to 31.03.2012 to management no. 5 for supply of drivers and the management no. 5 has thus deployed the workman at the premises of management no. 1. It was submitted on behalf of management no. 1 that the workman was working under direct control and supervision of management no. 5 and even all statutory benefits as well as the wages of the workman were being paid by management no. 5.
36. A similar stand was taken by management no. 5 in its written statement. It has further been alleged by management no. 5 that the workman was negligent in performance of his duties and after expiry of the fixed term contract between management no. 1 and management no. 5, the workman was directed to report to the head office of management no. 5 vide a letter dated 09.04.2012, however the workman had failed to report on duty. The stand of the management no. 2, 3 and 6 has already LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 16 of 33 been reproduced hereinabove.
37. A bare perusal of the rejoinder of the workman to the written statement of management no. 1 shows that it was in his rejoinder to the written statements of Management no. 1 and 5 that the workman, for the first time, has alleged that he was working under direct control and supervision of management no.1 and that as per the provisions of Contract Labour (Regulation and Abolition), Act, 1970, it was the mandatory duty of the principal employer to make sure that the contractors had complied with all the statutory obligations.
38. Moreover, in his rejoinder to the written statement of management no. 5, the workman had alleged that he had been in employment of management no. 1 since long, however, management no. 1 used to show his name as an employee of different-different contractors for different periods in its record. On the other hand, in his rejoinders to the written statements of Managements no. 2 and 3, at one place he had claimed himself to be the employee of management no. 3, whereas, at another place, he had tried to hold management no. 2 liable as the main contractor. Thus, the workman has failed to take any consistent stand in his pleadings regarding his employment with different managements from time to time.
39. Further, though, he has alleged that his services were terminated by LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 17 of 33 the managements illegally and in violation of Section 25F of the Industrial Disputes Act, however, he has failed to name the alleged management who had terminated his services. It was only in his evidence by way of affidavit dated 24.12.2014 that the workman, for the first time, has come up with the plea that he had been working with the contractors of the management no. 1 since 01.06.2004, that the aforesaid contractors were not providing any statutory benefits to the workman and that upon demand of the workman for the statutory benefits, the managements had terminated his services w.e.f. 30.04.2012. Even, in his evidence by way of affidavit, the workman has failed to specifically disclose the name of the management who had actually terminated his services. He has also failed to disclose the period during which he had been working with each of the managements no. 2 to 6.
40. A perusal of record further reveals that even during his cross- examination by management no. 1, he has vaguely alleged that he had initially joined management no. 3, thereafter management no. 4 and lastly management no. 5, without any reference to any specific dates of his alleged joining the managements nos. 3, 4 or 5. During the course of his cross-examination by management no. 1, he has even failed to depose that he had ever joined the services of management no. 1. Rather he admitted that he had no document in his possession of his employment with management no. 1. He has further admitted that his salary was being paid by management no. 5 and it was management no. 5 who had been LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 18 of 33 deducting PF and ESI contribution from his salary and was depositing with the concerned department.
41. However, during his cross-examination by management no. 5 & 6, he has taken an absolutely contradictory stand, in terms of which, initially he was an employee of management no. 1 and he remained an employee of management no. 1 w.e.f. 01.04.2004 to 30.04.2012. He has categorically denied that he had ever remained an employee of managements no. 2 to 6. He has denied that he remained an employee of management no. 5 during 01.04.2011 till 31.03.2012. It was further admitted by him that he had not even submitted any written communication to management no. 1 regarding the allegations contained in para 2 of his affidavit i.e. regarding non providing of any statutory benefits by the managements to him. While responding to a question as to whether his employer M/s Shiv Travels has ever offered him any employment after his termination, the workman has answered in negative which means that he had admitted the management no. 5 to be his employer, although there is no such pleading on the part of the workman either in his statement of claim or in his rejoinders to the written statement of management no. 1 and 5 and he has denied the aforesaid fact during his cross-examination by management no. 5 and 6.
42. Under the aforesaid circumstances, in my considered opinion, it is apparent that though the workman has approached this Court with LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 19 of 33 absolutely vague averments regarding his employment with managements no. 1 to 6, without reference to any specific period of time during which he remained employed with either of the aforesaid managements, however, he had tried to improve upon his case in his rejoinders to the written statements of managements by alleging that the management no. 1 was the principal employer and the remaining managements were the contractors. He has also tried to setup the aforesaid case in his evidence by way of affidavit, however, during his cross-examination by different managements he was found taking contradictory stands. At one place he had alleged himself to be under the employment of managements no. 3,4 and 5 and at another place he was found denying the aforesaid fact and had alleged that he was an employee of management no. 1.
43. Issue no. (i) is thus liable to be decided against the workman, however, Ld. AR for workman has sought to contend that the management no. 1 has failed to prove either its registration as "Principal Employer" under the Contract Labour (Regulation and Abolition) Act, 1970 or that the managements no. 2 to 6 were having any license under the provisions of the aforesaid Act and hence the contracts, if any, between the management no. 1 on the one hand and managements no. 2 to 6 on the other, were sham and bogus. He thus submits that the workman should be taken to be under direct employment of management no. 1.
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44. I do not find any force in the aforesaid submission made on behalf of the workman. A bare perusal of record reveals that the copy of registration certificate of management no. 1 and license of management no. 5, issued under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 have been proved on behalf of the management no. 1 as Ex. MW-1/3(Colly). It is submitted by Ld. AR for workman that the registration certificate issued in the name of management no. 1 is not valid for want of renewal. Although, this Court could not find any provision in the Contract Labour (Regulation and Abolition) Act, 1970 requiring renewal of a certificate issued under the aforesaid Act unless the registration certificate is issued for a specific period, which is not the case before this Court, however, even if, it is assumed for the sake of arguments that the management no. 1 was not validly registered under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, the plea of Ld. AR for workman that for want of valid registration, the employees of the contractors should be deemed to be the employees of the management no. 1, is not tenable, firstly, in view of the fact that he has failed to setup any such plea in his statement of claim and secondly, the scope of jurisdiction of this Court is limited to the adjudication of question referred to this Court by the appropriate govt. vide reference order dated 06.08.2012 i.e. whether the services of the workman have been illegally and/or unjustifiably terminated by the management and if yes, to what relief is he entitled. There is no reference received by this LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 21 of 33 Court in respect of any dispute as to whether the contracts between the management no. 1 on the one hand and managements no. 2 to 6 on the other, were sham and bogus and whether the workman should be considered to be under direct employment of management no.1 while holding various contracts entered into between management no. 1 on the one hand and managements no. 2 to 6 on the other as mere camouflage.
45. While taking the aforesaid view, I derive support from the following observations of Hon'ble Delhi High Court in Chhathoo Lal Vs. Management of Goramal Hariram Ltd. 2006:DHC:6135:
"8. In the present case the workman had not raised any contention that the contract entered into between the contractor and the management was a sham. In fact the contention of the workman was that he was an employee of the respondent. The Labour Court could not have gone into the question whether the contract was sham or not because no such reference was made to the Labour Court. The reference made to the Labour Court was that whether the services of the petitioner were illegally terminated or not and the contention of the petitioner was that he was a direct employee of the respondent. I consider that the petitioner should have initially raised a proper dispute. He should have come up with clean hands and submitted that he was an employee of the contractor and the contract should be declared as sham and camouflage and he should be considered as an employee of the principal employer. He did not disclose the true facts and taking a false plea stood in the way of referring the proper dispute to the Labour Court. It is settled law that the Labour Court is a creation of the reference and the Labour Court cannot go beyond the terms of reference except that the questions incidental to the dispute and those, who go to the root to the jurisdiction of Labour Court can be decided by the Labour Court while deciding a reference.LIR No.4384/2016
Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 22 of 33 XXX XXX XXX XXX
10. In A.P.SRTC and Ors. v. G.Srinivas Reddy and Ors., Supreme Court held that if the respondents wanted the relief of absorption they will have to approach the Industrial Court and establish that the Contract Labour System was only a ruse/camouflage to avoid labour law benefits to them. Where the workmen do not approach the Court with correct reference and true facts, workmen cannot later on turn around and say that now they should be considered as workmen through the contractor and they should be deemed to be the employees of the management because contract was sham and camouflage." (Emphasis mine)
46. Thus, in the absence of any reference on the aspect of the alleged contracts between management no. 1 and 2 to 6 being sham and bogus, this Court cannot go into the aforesaid question. A bare perusal of judgment of Hon'ble Delhi High Court in ICIC Prudential Asset Management Company Ltd (M/s) v. Union of India 2012 LLR 245 and judgment of Hon'ble Bombay High Court in M/s Prabha Engineering Private Ltd Vs. Sarva Mazdoor Sangh and Ors 2018 LLR 828, relied upon by Ld. AR for workman, shows that in both the aforesaid judgments Hon'ble High Courts were dealing with proceedings arising out of a reference requiring the Labour Court to adjudicate whether the contracts in the aforesaid cases between the principal employer and contractor were sham and bogus or not. Even otherwise, as has already been observed, the aforesaid issue does not arise out of pleadings of the parties. Moreover, no evidence on the aforesaid issue has been led by the workman in the LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 23 of 33 present case.
47. It is next contended by Ld. AR for workman that since management no. 1 was not registered under the Contract Labour (Regulation and Abolition) Act, 1970 and the managements no. 2 to 6 were not having any license under the aforesaid Act, the workman should be considered to be under direct employment of management no. 1. In support of his aforesaid submission, Ld. AR for workman has relied upon the judgment of Hon'ble Supreme Court in Secretary, Haryana State Electricity Board's case (Supra) and the judgment of Hon'ble Patna High Court in Employers in Relation to... Vs. Presiding Officer, Central 1999 (47) BLJR 2105.
48. I have carefully gone through the aforesaid judgment of Hon'ble Supreme Court in Secretary, Haryana State Electricity Board's case (Supra). With utmost respect to Hon'ble Supreme Court, in my considered opinion, the observations of Hon'ble Supreme Court regarding the existence of employer-employee relationship between the principal employer and the workman for want of registration of "principal employer" under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 and for want of any license having been issued in the name of contractors under the provisions of the aforesaid Act, were based on the judgment of Hon'ble Supreme Court in Air India Statutory Corporation Vs. United Labour Unions and Ors. etc JT 1996(11) SC LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 24 of 33
170. Even the observations of Hon'ble Patna High Court in Employers in Relation to... Vs. Presiding Officer, Central 1999 (47) BLJR 2105 were based on the judgments of Hon'ble Supreme Court in Air India Statutory Corporation Vs. United Labour Unions and Ors. etc JT 1996(11) SC 170 and in Secretary, Haryana State Electricity Board's case (Supra).
49. It is significant to note in this regard that the observation of Hon'ble Supreme Court in Air India Statutory Corporation Vs. United Labour Unions and Ors. etc JT 1996(11) SC 170, relied upon in Secretary, Haryana State Electricity Board's case (Supra) have been specifically overruled by a larger bench of Hon'ble of Supreme Court in Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors. (2001)7 SCC 1. In the later judgment i.e. in Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors. (2001)7 SCC 1, Hon'ble Supreme Court has relied upon the observations of Hon'ble Supreme Court in Denanath and Ors. Vs National Fertilizers Ltd and Ors. JT (1991) 4 SC 413 which were sought to be distinguished by Hon'ble Supreme Court in Secretary, Haryana State Electricity Board's case (Supra).
50. Relevant observations of Hon'ble Constitution Bench of Supreme Court in Steel Authority of India's case supra in this regard are as follows:
LIR No.4384/2016Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 25 of 33 "96. In Dena Nath case [(1992) 1 SCC 695 : 1992 SCC (L&S) 349] a two-Judge Bench of this Court considered the question, whether as a consequence of non-compliance with Sections 7 and 12 of the CLRA Act by the principal employer and the licensee respectively, the contract labour employed by the principal employer would become the employees of the principal employer. Having noticed the observation of the three-Judge Bench of this Court in Standard Vacuum case [AIR 1960 SC 948 : (1960) 3 SCR 466] and having pointed out that the guidelines enumerated in sub-section (2) of Section 10 of the Act are practically based on the guidelines given by the Tribunal in the said case, it was held that the only consequence was the penal provisions under Sections 23 and 25 as envisaged under the CLRA Act and that merely because the contractor or the employer had violated any provision of the Act or the Rules, the High Court in proceedings under Article 226 of the Constitution could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. This Court thus resolved the conflict of opinions on the said question among various High Courts. It was further held that neither the Act nor the Rules framed by the Central Government or by any appropriate Government provided that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer."
51. So far as the plea of Ld. AR for workman, regarding the claimant working under direct control and supervision of management no. 1, is concerned, in my considered opinion, in the absence of any pleading of the workman in his statement of claim to this effect, the workman is not entitled to raise the aforesaid issue during the course of final arguments. Even otherwise, the workman has failed to produce any document which indicates that he had been working under direct control and supervision of management no. 1 though he has tendered a number of documents in his evidence.
LIR No.4384/2016Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 26 of 33
52. A bare perusal of the documents produced by the workman shows that all of these include the name of contractors besides the name of management no. 1. Merely because the log book of the vehicle, driven by the workman, was being maintained by the management no. 1, in my considered opinion, the same shall not have the effect of creation of any direct relationship of employer and employee between management no. 1 and workman, in as much as, admittedly, the vehicle, driven by the workman as an employee of the contractors, was being provided by the management no. 1 and management no. 1 is bound to exercise some control over the workman after the workman was deployed on duty by the contractor at the vehicle of management no. 1.
53. In fact, as per the suggestion of Ld. AR for the workman to M1W1, it is apparent that admittedly the payments were being made to the workman by the contractors and the contractors used to claim the same from the management no. 1 in terms of the contracts. The management no. 1 has also examined the witnesses from PF and ESI departments who have produced the relevant record regarding deduction and deposit of statutory contributions in respect of PF and ESI on behalf of the workman, which shows that the contributions qua the aforesaid statutory benefits on behalf of the workman were being deposited by the contractors and not by management no. 1.
54. Under the aforesaid circumstances, in my considered opinion, LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 27 of 33 merely because, management no. 1 was required to exercise some control as to the manner in which the workman should perform his duty under the contract between the management no. 1 and the contractors, the aforesaid control, if any, was merely secondary after the workman was deployed by the contractors with management no. 1 and the management no. 1 cannot be said to have the direct control and supervision over the workman so as to create relationship of employer and employee between the management no. 1 and the workman.
55. While taking the aforesaid view, I draw support from the following observation of Hon'ble Supreme Court in BHEL v. Mahendra Prasad Jakhmola, (2019) 13 SCC 82:
"21. We, now come to some of the judgments cited by Shri Sudhir Chandra and Ms Asha Jain. In Bengal Nagpur Cotton Mills v. Bharat Lal [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] , it was held that the well-recognised tests to find out whether contract labourers are direct employees are as follows : (SCC p. 638, para 10) "10. It is now well settled that if the industrial adjudicator finds that the contract between the principal employer and the contractor to be a sham, nominal or merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well-recognised tests to find out whether the contract labourers are the direct employees of the principal LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 28 of 33 employer are : (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that the first respondent is a direct employee of the appellant."
22. The expression "control and supervision" were further explained with reference to an earlier judgment of this Court as follows : (Bengal Nagpur Cotton Mills case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] , SCC pp. 638-39, para 12) "12. The expression "control and supervision" in the context of contract labour was explained by this Court in International Airport Authority of India v. International Air Cargo Workers' Union [International Airport Authority of India v. International Air Cargo Workers' Union, (2009) 13 SCC 374 : (2010) 1 SCC (L&S) 257] thus : (SCC p. 388, paras 38-39) '38. ... if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract labour, when such LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 29 of 33 labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.'"
23. From this judgment in Bengal Nagpur Cotton Mills case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] , it is clear that Test No. 1 is not met on the facts of this case as the contractor pays the workmen their wages. Secondly, the principal employer cannot be said to control and supervise the work of the employee merely because he directs the workmen of the contractor "what to do"
after the contractor assigns/allots the employee to the principal employer. This is precisely what para 12 of Bengal Nagpur Cotton Mills case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] explains as being supervision and control of the principal employer that is secondary in nature, as such control is exercised only after such workman has been assigned to the principal employer to do a particular work.
24. We may hasten to add that this view of the law has been reiterated in Balwant Rai Saluja v. Air India Ltd. [Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407 : (2014) 2 SCC (L&S) 804] , as follows : (SCC pp. 437-38, para 65) LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 30 of 33 "65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer- employee relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists complete control and supervision.
As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 :
(2011) 1 SCC (L&S) 16] , International Airport Authority of India case [International Airport Authority of India v. International Air Cargo Workers' Union, (2009) 13 SCC 374 : (2010) 1 SCC (L&S) 257] and Nalco case [NALCO Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353]."
56. It is next contended by Ld. AR for workman that since the management no. 1 has not denied that the workman had been working at the establishment of management no. 1, the onus to prove that he was deployed at its establishment as an employee of contractors was upon management no. 1. He submits that the management no. 1 has failed to prove the aforesaid fact by leading any cogent evidence, in as much as, LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 31 of 33 M1W1 has not only failed to respond to the basic questions on the issue, but has also failed to produce the relevant record. In support of his aforesaid submission Ld. AR for workman has relied upon the judgment of Hon'ble Allahabad High Court in ICI (India) Ltd (formerly I.E.L. Ltd) Fertilizer Division, Panki, Kanpur Vs. State of UP and Ors. 2012, LLR 878.
57. Though there can't be any dispute about the proposition of law laid down by Hon'ble Allahabad High Court in the aforesaid judgment, however, in my considered opinion, considering the material produced by the management no. 1 during its evidence i.e. the copy of contract between the management no. 1 and 5, record of PF and ESI Returns and inherently contradictory pleas of the workman during different stages of trial the aforesaid judgment is not of any assistance to the workman since the management no. 1 has been able to discharge its onus to prove the said issue on the touchstone of preponderance of probabilities, whereas, the workman has failed to adduce any document to prove his relation with management no. 1 as an employee of the later. Issue no. (i) is thus decided against the workman.
Issue no. (ii): In terms of the reference i.e. Whether services of Sh. Pramod Kumar Singh S/o Sh. Megh Singh have been illegally and/or unjustifiably terminated by the managements; and if yes, to what relief is he entitled?"
LIR No.4384/2016Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 32 of 33
58. It has already been observed herein above that the workman has failed to prove the existence of any employer-employee relationship between either of the managements and himself as on the date of his alleged termination or that his services were illegally terminated by either of the managements w.e.f. 30.04.2012. Since the workman has failed to prove his illegal termination by either of the managements w.e.f. 30.04.2012, he is not entitled to any relief.
59. In view of the aforesaid conclusion, claim of the workman is liable to be dismissed and is hereby dismissed and the reference dated 06.08.2012 is answered in the following terms:-
"The claimant Sh. Pramod Kumar Singh S/o Sh. Megh Ram has failed to prove that his services were illegally and/or unjustifiably terminated by either of the managements and hence he is not entitled to any relief".
60. Ordered accordingly.
61. Requisite number of copies of the award be sent to the competent authority for publication.
ARUN Digitally signed Announced in the open Court on this 12th day of March, 2024. by ARUN This award consists of 33 number of signed pages. KUMAR KUMAR GARG Date: 2024.03.12 GARG 16:22:40 +05'30' (ARUN KUMAR GARG) Presiding Officer Labour Court-III Rouse Avenue Court, New Delhi LIR No.4384/2016 Pramod Kumar Singh Vs. M/s BSES Yamuna Power Ltd & Ors Award dated 12.03.2024 Page 33 of 33