Delhi District Court
Trilok Singh Rawat Ors vs Gee Vee Construction Ltd on 14 September, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref. No. : F-24/(42)/NDD/Lab./208
Dated 10.08.2009
I.D. No. : 67/16 (Old Nos. 25/09 & 340/10)
Workmen
Sh. Trilok Singh, S/o Sh. Rattan Singh Rawat & 5 Ors
Through Delhi State General Workers Congress, 8/425,
Trilok Puri, Delhi-110091.
Vs.
The Management of
1. M/s Gee Vee Construction Ltd.,
11 Tolstoy Marg, New Delhi.
2. M/s Shakti Maintenance & Security Contractors
C/o M/s Gee Vee Construction Ltd, 11 Tolstoy Marg,
New Delhi.
Date of Institution : 10.08.2009
Date of presentation : 19.04.2023
before this court
Date of Arguments : 14.09.2023
Date of Award : 14.09.2023
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal vide
notification No. : F-24/(42)/NDD/Lab./208, Dated 10.08.2009 with
following terms of the reference:-
POIT No. 67/2016 Page 1 of 30
"Whether the workmen S/Shri Trilok Singh Rawat
S/o Sh. Rattan Singh Rawat; Sh. Zafir Ahmad S/o
Sh. Abdul Latif; Sh. Dham Singh Negi S/o Sh.
Gopal Singh Negi; Sh. Komal Prasad Sharma S/o
Sh. Budhsen Sharma; Sh. Ram Bir Singh S/o Sh.
Yad Ram Singh and Shri Krishna Bihari Pathak
S/o Sh. Gauri Shankar Pathak are entitled for
regularisation of their services with the
management of M/s Gee Vee Construction with all
consequential benefits w.e.f. their respective dates
of initial appointment as per Annexure 'A' and are
also entitled for equal wages, allowances and
other service benefits as are being paid to the
regular workmen of M/s Gee Vee Construction
performing similar work and if so what sum of
money as monetary relief in terms of existing laws
and government notification issued from time to
time are they entitled and what directions are
necessary in this respect?"
2. Statement of claim has been filed on behalf of the workman,
wherein it has been stated the workman aforesaid have been
engaged as Security Guards by the above management of GEE VEE
CONSTRUCTION for the security of its Vandana Building, Tolstoy
Marg, New Delhi. The claimant/workers have been working
continuously without any break for the last many years for the
management of M/s Gee Vee Construction, which is an industry
within the meaning of the ID Act and all the claimant workers fall
within the definition of workman as prescribed under section 2(s) of
the ID Act.
3. That the Management knowing that the job performed by
these workers is of a permanent and perennial nature, has, with
POIT No. 67/2016 Page 2 of 30
ulterior motive to deprive them of security of job, equal wages and
other benefits under the beneficial legislations, employed the
workers ostensibly through different contractors who are in-fact its
agents. That the said agents/contractors are for name sake only and
have no control of any kind over the workers, their employment and
their terms and conditions of service. The workers concerned were
under the direct control and supervision of the Management no. 1.
i.e. GEE VEE CONSTRUCTION. That the engagement of these
workers by the management no. 1 through its agents/contractors is
only a ruse/camouflage and if the veil is lifted it would be revealed
that there is a direct employer and employees relationship between
the Management no. 1 and the workers concerned. That the
concerned workers have been illegally shown to have been
employed as Contract Labour as the service conditions of the
claimant workers are decided by the management no. 1. That the
contractors are being changed frequently by the Management no. 1,
but the services of the concerned workers are continued without any
break by the above management and whenever the contractor is
replaced by the management no. 1, the concerned workers are
continued in service, however, they are shown to have been engaged
through the new contractor. That just because of the directions of the
management no. 1, the new contractors could not replace or
substitute the services of the concerned workers.
4. That before the present contractor the claimant workers were
shown to have been engaged through M/s IPSS, M/s Superior
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Security Services, Shakti Maintenance & Security Contractors and
ARC Detective etc. That the management no. 1 has been paying the
wages of the workers concerned directly or Indirectly. All the
alleged contractors are acting on the directions and commands of the
management no. 2 only and they have no authority to take
independent decisions. That the management no. 1 exercising the
absolute economic control over the livelihood of the concerned
workers and the provisions as to allowances for uniform, wages,
leave, assignment of duty, continuation in service etc are all
determined by the management no. 1. The contractors' only role is
to lend his name as the employer of the claimant workers against
payment of certain amount. The contractors do not come to the
work-site for supervision of the work of the claimant workers. It is
stated that the selection of the claimant workers was done by the
management no. 1 only. That the management no. 1 is not registered
under the provisions of the Contract Labour (Regulation &
Abolition) Act/Rules nor the different contractors through whom the
concerned workers have been shown to have been engaged from
time to time. That the workmen concerned are the direct employees
of the management no. 1.
5. That the concerned workers are working in 3 shifts of 8 hours
each from 8 am to 4 p.m. and 4 p.m. to 10 p.m. and 10 p.m. to 8
a.m. Thus the work is available round-the-clock for 365 days in a
year which fact establishes that the work is of permanent and
perennial nature and workers also do overtime which also
POIT No. 67/2016 Page 4 of 30
establishes the permanent nature of work. That the engagement of
concerned workers through the contractors amounts to unfair labour
practice and according to the clause 10 of the Vth Schedule of the
ID Act, the employing of workmen as 'Badlis, casuals and
temporaries and to continue them as such for years with the object
of depriving them of the status and privileges of permanent
workmen amounts to unfair-labour practice. That the engagement of
the workers through the contractors is basically for monetary and
other gains as the claimant workers are being provided much less
wages than the regular employees. That the workers through their
union made various representations/demands to the Management to
regularise them in regular service against their existing posts and to
look into their grievances regarding payment of wages. However,
management no. 1 did not look into the same. That the workers
concerned in their meeting dated 24.1.2007 decided to raise an
Industrial Dispute for the regularization of their services and wage
parity and approached their union for the redressal of their
grievances and thus finally the union in its meeting on 5.3.2008
resolved to raise an Industrial Dispute for the regularisation of the
services of the claimant workers and for wage parity with the
regular staff and filed Statement of Claim before the ALC for the
regularisation of the services of the claimant workers and for wage
parity. That the management no. 1 did not agree to the claim and the
conciliation proceedings ended in failure and finally the matter has
been referred to this tribunal. That the workmen prayed that
management no. 1 be directed to regularise their services with all
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consequential benefits w.e.f. their respective dates of initial
appointment; to grant them equal wages as paid to the regular staff
performing similar work w.e.f the date of their initial date of joining
the management no. 1; to declare the contract between the
Management no. 1 and its various agencies including the
Respondent No.2 is sham and bogus. The details of workmen as
given in Annexure A are as follows:
S/N Name Post Date of Birth Date of
Joining
1 Trilok Singh Rawat S/Guard 01.02.1955 17.06.1978
S/o Sh. Rattan Singh
Rawat
2 Zafir Ahmed S/o Sh. S/Guard 01.05.1951 13.07.1978
Abdul Latif
3 Dham Singh Negi S/Guard 12.10.1956 October 92
S/o Sh. G.S. Negi
4 Komal Prasad S/Guard 19.02.1970 October 92
Sharma S/o Sh.
Budhseen Sharma
5 Ram Bir Singh S/o S/Guard 10.01.1966 Nov. 1992
Yad Ram Singh
6 Krishna Bihari S/Guard 02.03.1969 17.01.2000
Pathak S/o Sh. Gauri
Shankar Pathak
6. Written Statement was filed on behalf of the management
no. 1 i.e. GEE VEE CONSTRUCTION wherein it has taken
objections that the claim of the workman is liable to be dismissed as
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there has never been any employer and employee relationship
between the parties to the present claim and thus, the questions of
regularization of service of the workers with all consequential
benefit with effect from respective dates of initial appointment or
any dues under the industrial dispute act or any provision industrial
law etc. as alleged does not arise and workmen are not entitled to
any relief as prayed for. That the claims of workmen are false,
fabulous, vexatious and baseless and the same suffer from
concealment and misrepresentation and is bereft of any cause of
action and as such the same liable to be dismissed.
7. That the respondent No. 1 is not the principle employer of the
workmen and has neither appointed nor terminated services of the
workmen concerned and management no. 1 has been dragged in
unnecessary litigation by the workmen. That the services conditions
and payments of wages were directly paid by contractor M/s Shakti
Maintenance and Security i.e. respondent no. 2 to the workmen.
That an agreement of the contract was sign between management
no. 1 and and management no. 2 on 16-06-1998, 15-06-2001 and
15-06-2008 which shows that the respondent No. 1 has been made
party just to defame, torture, grab the money and to harass the
respondent no l. That the respondent No. 1 has nothing to do with
the dispute between the workmen and the respondent No. 2 i.e. M/s
Shakti Maintenance and Security Contractors. That as per clause 1
of the agreement/contract during the continuance of the agreement
the second party shall take the full responsibility for providing
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round the clock watch and ward arrangements and all needed
security arrangements for the purpose of safeguarding the properties
and belonging at Vandana Building. That as per the clause 2 of the
agreement/contract for the efficient fulfillment of the obligation the
second party will engage one security supervisor and six guards.
That all the relief will be provide by the second party for the leave
period of the security guard and personnel security staff will be
trained in the security duties. That as per clause 5 of the
agreement/contract mentioned that the second party, its proprietors
shell be responsible for compliance of all provisions connected with
employment of the staff employed by him such as wages, P.F., ESI,
Bonus and leave etc. That the said staff shell be obligation of the
second party and it shell be liable for the payment of all legal dues
of its employees. That the first party would not be responsible/liable
of the second party and the security personnel for any dues not pay
to its staffs by the second party M/s Shakti Maintenance and
Security Contractors. That as per the clause 6 the second party will
submit the photocopy of memorandum of Article and certificate of
incorporation of their company contractors registration with
Provident Fund and ESI authorities. That the claim of the workmen
is not maintainable against the respondent no. 1 and as such the
claim of the workmen qua management no. 1 is liable to be
dismissed.
8. Management no. 2 also filed Written Statement wherein it has
contended that the workmen were already working for the
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management of Gee Vee Construction Ltd. i.e. management no. 1
when the contract was given to them by the management no. 1. That
the job of the security of the building of management no. 1 is for 24
hours a day and for 365 days a year. That the workmen were
engaged through them and they were paying the wages to the
workmen as per the terms of the contract between them and
management no. 1. That the Respondent no. 2 was complying with
all the directions of the Management no. 1 i.e. GEE VEE
CONSTRUCTION. That prior to the present contract, management
no. 2 was given a similar contract earlier also and after the expiry of
the said contract the claimant workmen continued to work for
management no. 2 through some other contractor. That the workmen
were working in 3 shifts of 8 hours each from 8 a.m. to 4 p.m. and 4
p.m. to 10 p.m. and 10 p.m. to 8 a.m. The respondent no. 2 denied
that the workmen are not even given the minimum wages for semi
skilled category and respondent no. 2 is not liable to pay more than
what is received by it from management no. 1. That the workmen
concerned never made any demand from the respondent no. 2 for
regularization of their services and as such no claim is maintainable
against respondent no. 2.
9. Rejoinder was filed on behalf of the workmen reiterating the
contentions of the statement of claim.
10. After completion of proceedings, the following issues were
framed by the Ld. Predecessor on 23.12.2009.
POIT No. 67/2016 Page 9 of 30
i. Whether there is relationship of employer
employee between management no. 1 and
workman? OPM
ii. Whether there was any genuine contract
between management no. 1 and 2, if so, its
effects? OPM
iii. As per terms of reference.
iv. Relief.
11. To prove their case, workmen examined Sh. Zafir Ahmed as
WW1, Sh. K.B. Pathak as WW2, Sh. D.S. Negi as WW3, Sh. K.P.
Sharma as WW4 and Sh. Trilok Singh Rawat as WW5. They all
tendered their evidence by way of affidavits, which are Ex.WW1/A
to Ex.WW5/A, in which they have affirmed the contents of their
statement of claims and have relied upon documents Ex WW1/1 to
Ex WW1/27. All the WWs were cross-examined by ld. AR for the
management.
12. On the other hand, to prove their case, management no. 1
examined Sh. K.B. Haldar, who happens to be the Building
Maintenance Supervisor Manager of management no. 1. He
tendered his evidence by way of affidavit Ex.MW1/A in which he
has affirmed the contents of the written statement. He has also relied
upon documents Ex.MW1/1 to Ex.MW1/9. Ld. AR for the workman
cross-examined MW1. Management no. 2 did not lead any evidence
on its behalf.
13. Perusal of file reveals that on 02.02.2019, the present dispute
was pending for workmen evidence. However, due to non-
POIT No. 67/2016 Page 10 of 30
appearance of the workmen for their evidence, No Dispute Award
against the workmen was passed by my ld. Predecessor. Thereafter,
on 26.03.2019, an application on behalf of the workmen for setting
aside the NDA dated 02.02.2019 was moved and vide order dated
04.02.2021, No Dispute Award dated 02.02.2019 was set aside and
the present case was restored.
14. Final arguments have been heard at length as advanced by
counsels for both the parties. Written arguments have also been filed
on behalf of workmen as well as management. Same have been
gone through.
15. The workman has argued that the management has indulged
in an unfair labour practice by employing the workman as daily
wager for performing the permanent and perennial nature of work.
That employing persons on regular nature of jobs and treating them
as a monthly paid/muster roll workers and paying them lesser
remuneration than those doing the identical work and the work of
same value amounts to unfair labour practice as provided in Section
2(ra) read with Item No.10 of Fifth Schedule and read with Section
25 T punishable under Section 25 U of the Industrial Dispute Act,
1947.
16. The management has contended that there is no employer and
employee relationship between the workmen and the management
no. 1. The workmen are not the employees of the management no. 1,
rather there services were contractual under the employment of
management no. 2. It has been further argued that since there is no
POIT No. 67/2016 Page 11 of 30
relationship of employer employee between the management no. 1
and workmen, they were under the direct control and supervision of
contractor/management no. 2, thus, the questions of regularization
of service of the workers with all consequential benefit with effect
from respective dates of initial appointment or any dues under the
industrial dispute act or any provision industrial law etc. as alleged
does not arise and workmen are not entitled to any relief as prayed
for against management no.1. All the workmen were being paid
their salaries through the contractor/respondent no. 2 and contractor
had full control and supervision on the service conditions of the
workmen.
17. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved during
evidence.
18. The issue no. 1 and issue no. 2 will be decided together as
they are identical and correlate with each other.
19. My issue wise findings are:-
Issue No.1: Whether there is a relationship of
employer-employee between management no.1
and the workman? (OPW)
Issue No. 2: Whether there was any genuine
contract between management no.1 and 2, if so,
its effects? (OPM)
20. The AR for the workmen argued that the workmen concerned
were engaged by the management No. 1 as Security through
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Management No. 2 w.e.f the dates as mentioned in Annexure A of
terms of reference and since then they have been working
continuously and uninterruptedly without any break for the
management No. 1. It is contended that the job against which the
workmen were working is of permanent and perennial in nature. The
management has knowingly with mala-fide intention engaged
contractors to avoid rights and liabilities towards the workman
concerned. The said contractor is a mere sham, bogus and
camouflage, it is the Management No. 1 who maintained the
ultimate supervisions and control over the workmen concerned. It is
also argued that the engagement of the workers through so-called
contractors is for monetary gains as the claimant workers are
provided much less wages than the regular employees and the same
is discriminatory in terms of wages and other conditions of
employment. Such an engagement of the workmen through different
contractors is with malicious intent and amounts to unfair labour
practice.
21. The AR for the Management No. 1 argued that there has
never been any employer and employee relationship between them
and the workmen as the workmen concerned have never been
employed directly under Management No. 1. It has been contended
on behalf of the management no. 1 that they have had no direct
contact with any of the claimant workers at any time, except through
M/s Shakti Maintenance and Security Contractors. Their services,
payments of wages, and other conditions were directly overseen by
M/s Shakti Maintenance and Security Contractors, and not by the
POIT No. 67/2016 Page 13 of 30
Management no. 1. It is further contended that the job against which
workmen were posted is not of permanent and perennial in nature as
claimed by the workmen concerned. In addition to this, as per the
agreement between the management no. 1 and Management no. 2,
the latter is responsible for compliance with all provisions related to
employment, including wages, P.F., ESI, Bonus, and leave for the
workmen concerned.
22. The management no. 2 has stated in its written statement that
the workmen concerned were already working with the management
no. 1 when the contract was awarded to the management no. 2. The
said management has admittedly stated that the job of security at
management no. 1 is a 24-hour job, 365 days a year and that the
workmen concerned work in 3 shifts of 8 hours each.
23. A constitution bench of the Hon'ble Supreme Court in Steel
Authority of India Ltd. & Ors. vs National Union Water Front
WOrkers & Ors AIR 2001 SC 3527 has held that,
105. An analysis of the cases, discussed above,
shows that they fall in three classes;(i) where
contract labour is engaged in or in connection
with the work of an establishment and
employment of contract labour is prohibited
either because the Industrial adjudicator/Court
ordered abolition of contract labour or because
the appropriate Government issued notification
under Section 10(1) of the CLRA Act, no
automatic absorption of the contract labour
working in the establishment was ordered; (ii)
where the contract was found to be sham and
nominal rather a camouflage in which case the
contract labour working in the establishment of
POIT No. 67/2016 Page 14 of 30
the principal employer was held, in fact and in
reality, the employees of the principal employer
himself. Indeed, such cases do not relate to
abolition of contract labour but present instances
wherein the Court pierced the veil and declared
the correct position as a fact at the stage after
employment of contract labour stood prohibited;
(iii) where in discharge of a statutory obligation
of maintaining canteen in an establishment the
principal employer availed the services of a
contractor and the Courts have held that the
contract labour would indeed be the employees of
the principal employer.
24. The issue involved in SAIL (Supra) was regarding automatic
absorption of contract labour in the event the appropriate
government issued notification under Section 10(1) of the CLRA
Act. Hon'ble Supreme Court illustrated an instance wherein the
contract was found to be sham and camouflage.
25. The Hon'ble Supreme Court in Balwant Rai Saluja vs Air
India Ltd 2014(9) SCC 407 has held that:
"52. To ascertain whether the workers of the
Contractor can be treated as the employees of the
factory or company on whose premises they run the
said statutory canteen, this Court must apply the test of
complete administrative control. Furthermore, it would
be necessary to show that there exists an
employeremployee relationship between the factory
and the workmen working in the canteen. In this
regard, the following cases would be relevant to be
noticed.
...........
62 . A recent decision concerned with the employer employee relationship was that of the NALCO case POIT No. 67/2016 Page 15 of 30 (supra). In this case, the appellant had established two schools for the benefit of the wards of its employees. The Writ Petitions were filed by the employees of each school for a declaration that they be treated as the employees of the appellant-company on grounds of, inter alia, real control and supervision by the latter. This Court, while answering the issue canvassed was of the opinion that the proper approach would be to ascertain whether there was complete control and supervision by the appellant therein. In this regard, reference was made to the case of Dhrangadhra Chemical Works case (supra) wherein this Court had observed that:
14. The principal which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p.23 in Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd., (1952) SCR 696 "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question"." *
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;
POIT No. 67/2016 Page 16 of 30(v) whether there is continuity of service; and
(vi) extent of control and supervision, i.e. whether there exists complete control and supervision."
In Chief Engineer, Thermal Power Station, GEB vs Workmen & Ors, Special Civil Appeal No. 16912 of 2005 decided on 31.08.2017, Hon'ble High Court of Gujarat upheld the test applied by the industrial tribunal to arrive at a finding of whether the contract is sham and bogus. The relevant paragraph reads as under:-
On reading the award, it comes out that so as to decide the issue whether the contract is genuine or camouflage or sham and bogus and whether the contract is merely name lender and so as to reach to the final conclusion with regard to the dispute referred by appropriate Government, learned Tribunal examined, analyzed, evaluated and appreciated the documentary and oral evidence available on record in 8 segments i.e. under 8 broad heads namely viz.
(1) Activities/business of the principal employer (2) genuine need or requirement of engaging contract labour (3) length of continuous and uninterrupted service of workman (4) nature of work done by the workmen i.e. whether the work is perennial in nature or intermittent (5) who has in fact, supplied the labour force to the principal employer, meaning thereby, whether service of the workmen were made available to the principal employer by the labour contractor after making recruitment (6) extent of supervision and control of the workmen by the principal employer POIT No. 67/2016 Page 17 of 30 (7) whether the workers do the labour work to produce goods or service for business of the principal employer and (8) whether the provisions of the Act (The Contract Labour (R&A) Act, 1970) relating to registration and licence etc. are complied with."
26. The workmen have contended that they have joined into the employment of management no. 1 w.e.f. their respective initial dates of joining as mentioned in the table above. Thereafter the workmen have stated that their date of joining in their respective affidavits filed before this tribunal to which neither the management no. 1 nor the management no. 2 raised any dispute or cross-examined the workmen on this aspect. It is an admitted position that the workmen concerned have been working with the management no. 1 despite the repeated change of contractors. The management witness MW-1 has stated in his cross-examination that "we have given separte contract to separate contractors yearwise. I cannot recollect when the first contract was given to Shakti Chopra maintenance and contractors. It is correct that 4 to 5 contractors have been changed since 1978 when these workers started working." The management no. 1 has not placed upon record the contract agreements executed between itself and the contractors since 1978 to till date. The management no.1 has placed on record three contract agreements i.e. Ex. MW1/1, Ex. MW1/2 and Ex. MW1/3, out of them the oldest date backs to 1998. No document has been placed upon record to show the terms and conditions governing the contractors, workmen and the management no. 1 prior to 1998.
POIT No. 67/2016 Page 18 of 3027. The management no. 1 failed to explain about its relationship with workmen concerned prior to 1998. Even the contract agreements filed for the year 2008, 2001 and 1998 pertains to the vaility of one year only. It suggests that the management no. 1 has failed to show that the workmen concerned were on the rolls of management no. 2 through out since 1978 till date.
28. The workmen in order to prove the employer employee relationship have placed reliance upon record Ex. WW1/2 i.e. letter dated 14.08.1985 issued to M/s Crompto Greaves wherein the management had issued directions to the security guards not to allow any vehicle to be parked inside the building after 8:30 PM. Similarly, Ex. WW1/3 letter dated 19.05.1986 as per which, the occupants of the building were informed that the management no. 1 has informed its security staff i..e workmen concerned to take preventive measures in light of the ongoing theft cases. Ex. WW1/4 is the experience certificate dated 25.08.1986 issued by the management to the workmen concerned namely Zafir Ahmed, Trilok Singh, Dham Singh Negi, and subsequently signed by its estate manager states that "the above mentioned people have been serving in this company since 1978 and have a good moral character. They are entitled to all the company facilities and the company does not intend to terminate their services in the coming future. Ex. WW1/5 is the show cause notice issued to the workman Sh. Trilok Singh by the management seeking explanation from the POIT No. 67/2016 Page 19 of 30 workman regarding his use of a lift during his night duty on 28th August 2002. The contents of which is reproduced below as follows:
"Dear Mr. Tilok Singh, Reg: USING LIFT DURING NIGHT DUTY You were on night duty on 28th Aug.2002. You had used Lift No.1 at about 10.30 P.M. Please explain the circumstances under which you had used the lift. As you know, during the nights lifts can be used in any emergency only. We have been reported that security guards/fire personnel have been using the lift during night. This is in contravention to the orders. Your reply should be submitted by 10 A.M. 29th Aug.2002 personally to Estate Manager.
Thanking you, Yours faithfully, for Gee Vee Const.-Ltd.
<sd> (DEVENDRA SINGH) Estate Manager"
29. The aforementioned documents suggests that it is the management no. 1 who is the disciplinary authroity with respect to the workman concerned as it has the power to issue show cause notices, seek explanation from the workman concerned with regard to his work and conduct. Ex. WW1/8 and Ex. WW1/9 are the appreciation letters issued by the management to the workmen concerned namely Sh. D.S. Negi and Sh. Zafir Ahmed as per which the management highlited their prompt response in emergency POIT No. 67/2016 Page 20 of 30 situation which arose in the premises of the management. The management in the aforesaid exhibites conveyed its appreciation to the workmen for the good work done by them.
30. Ex. WW1/12 i.e. letter dated 28.01.2000 sent to the management no. 2 by the management no. 1, as per which management no. 1 revised the allowances of security supervisor Sh. R.S. Rawat from Rs. 285/- p.m. to Rs. 410/- p.m. It suggests and corroborates the stance of the workmen that it is the management no. 1 who is the deciding authority for revision of their wages, meaning thereby the contractor is merely disbursing the salaries to the workmen, whereas the actual payment is coming from the management no. 1. The management no. 1 is the ultimate authority who is dictating its terms to management no. 2 pertaining to the payment of wages to be paid to the workman concerned. Similarly, Ex. WW1/15 & Ex. WW1/16 depicts that the directions directly flowed from the management no. 1 to workmen concerned. Ex. WW1/17 is the letter written by the management no. 1 to the management no. 2 for applying to get their contract renewed. This suggests that the management no. 1 was the main stake holder and thus, he was instrumental in directing the management no. 2 for maintaining the contract on paper. Ex. WW1/18 is the contract agreement dated 15.10.2004 executed between the management no. 1 and management no. 2, placed upon record. The said agreement stipulates the following:-
POIT No. 67/2016 Page 21 of 30"4. For disbursement of the salary of the month, the Second Party will submit his bill to the FIRST PARTY disbursement Salary Sheet indicating all the details including deductions being made e.g. P.F.,E.S.I. etc. Disbursement will be made in presence of a representative of First Party. First Party will make payment to the Second Party as per the details as per minimum wages act & agreement of security staff with Gee Vee Construction Ltd. dated 22.09.98.
8.Second Party will submit copies of the challan of the amount deducted towards E.S.I. & P.F. as per rules and deposit to their authorities concerned, each month, preterrable along with the bill of next month. At the end of the Financial Year complete details of deductions to P.F. & E.S.I & deposits, submitted the authorities concerned, will also be submitted to First Party.
Bonus as applicable will be paid once in a year preferably before Diwali."
31. The bare perusal of the aforesaid terms suggests that the management no. 1 retained the authority pertaining to the fixation of wages, PF/ESI, Bonus facilities to be given to the workmen concerned. The role of the contractor is to merely calculate the salaries of the workmen in accordance with the Minimum Wages Act. Same is the case with ESI, PF, Bonus, etc. Thereafter, it is the management no. 1 who is supposed to make the payment to the workmen concerned through the channel of management no. 2. Further, the aforesaid contract agreement has not stipulated any fixed monthly payment to be made to the contractor. The amount POIT No. 67/2016 Page 22 of 30 payable to the management no. 2 varies in accordance with the number of workmen as per their attendance record. The mangement witness MW-1 in her cross-examination on page no. 1 stated that the contractor used to give bills and after verifying the same, they used to relase the payment to the contrcator. This further strengthens the case of the workmen that the so-called contractor is merely a smokscreen intentionally created to avoid the legal rights and liabilities arise from an employer employee relationship. Not only this, even the uniforms, allowances, are also paid none else but by the management no. 1 only for the workmen. The same is established through Ex. WW1/19.
32. Management No. 1 contends that the concerned workmen are merely outsourced workers, and there exists no employer-employee relationship between them. According to them, Management No. 1 is simply a principal employer. However, this argument is not supported by any documentary evidence. As admitted in the testimony of the management's witness, neither does Management No. 1 possess the Registration Certificate, nor does the so-called contractor, i.e., Management No. 2, have any license as mandated under the Contract Labour (Regulation & Abolition) Act, 1970. A division bench of Hon'ble High Court of Gujarat in Gujarat Mazdoor Panchayat vs State of Gujarat (1992) II LLJ 1486 Guj has held that :-
(4) Even though the principal employer may be registered employer under the Act and the POIT No. 67/2016 Page 23 of 30 concerned contractor may be licensed contractor under the Act, his licence may not cover the activity which is carried on by the contract labour.
(5) Even though principal employer may be registered employer under the Contract Labour Act and the contractor may be having a valid licence to employ contract labour, under the Contract Labour Act, for a given activity, still licence issued to him may not cover exact number of permissible employees employed by him meaning thereby, number of permissible employees under the license may be less than number of employees actually employed and qua such excess number of employees, protective umbrella of licence would not be available to the contractor so far as the activity covered by the licence is concerned.
33. Therefore, in view of the settled position of law, as well as the documentary and oral evidence placed upon record, this Tribunal is of the view that the Managements have not complied with the provisions of the CLRA Act, which they claim to be governed with as no registration certificate and license under CLRA Act has been placed upon record. Further, in the present matter as there is overwhelming evidence to arrive at a finding that the workmen are in fact employees of the Management No. 1. Hence, this Tribunal holds that the contract arrangement between the Management No. 1 and the Management No. 2 is mere sham, nominal and camouflage to deny the employment benefits to the workmen. The workmen whose details are given in the table above at Para No. 4 are in fact employees of Management No. 1. This tribunal further holds that POIT No. 67/2016 Page 24 of 30 their was no geneunine contract between the management no. 1 and management no. 2. Therefore, these issues i.e. issue no. 1 & issue no. 2 are decided in favour of the workmen and against the managements.
34. Issue No.3: As per the terms of reference.
"Whether the workmen S/Shri Trilok Singh Rawat S/o Sh. Rattan Singh Rawat; Sh. Zafir Ahmad S/o Sh. Abdul Latif; Sh. Dham Singh Negi S/o Sh. Gopal Singh Negi; Sh. Komal Prasad Sharma S/o Sh. Budhsen Sharma; Sh. Ram Bir Singh S/o Sh. Yad Ram Singh and Shri Krishna Bihari Pathak S/o Sh. Gauri Shankar Pathak are entitled for regularisation of their services with the management of M/s Gee Vee Construction with all consequential benefits w.e.f. their respective dates of initial appointment as per Annexure 'A' and are also entitled for equal wages, allowances and other service benefits as are being paid to the regular workmen of M/s Gee Vee Construction performing similar work and if so what sum of money as monetary relief in terms of existing laws and government notification issued from time to time are they entitled and what directions are necessary in this respect?"
35. In view of my findings on issue no. 1 & 2 that the workmen are employees of managmeent no. 1, this issue is to be decided accordingly.
36. It is undisputed that the workmen joined into the employment of the management no. 1 w.e.f. their respective dates of joining as POIT No. 67/2016 Page 25 of 30 mentioned in the table above and have worked continuously and uninterruptedly as Security Guards.
37. The Hon'ble Supreme Court in Chief Conservator of Forest and Anr. (supra), the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural Development v. Its Workmen, (supra). The relevant portion of the aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for the respondents in Ajaypal Singh (supra), ONGC (supra) and Umrala Gram Panchayat (supra), also leave no manner of doubt that the Supreme Court has specifically observed that the prohibition laid down for regularization in Uma Devi (supra) does not apply to industrial adjudication and that the Industrial Tribunal has the power to direct regularization of services in cases where pursuant to unfair labour practices, employees have been made to render services for long periods of time on causal basis for work that should ordinarily be done by regular employees."
........
"61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."POIT No. 67/2016 Page 26 of 30
38. The Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably POIT No. 67/2016 Page 27 of 30 exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union ).
39. In view of my findings on issue no. 1 & 2 above, admitted position and the material on record as well as mandate of law, this tribunal holds that the management has clearly committed unfair labour practice by employing the workmen as outsourced employees for the performing the permanent nature of work of Security Guard and continued them for years with the object of depriving them the status and privileges of a regular and permanent employee. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest (supra) wherein the Hon'ble Supreme Court of India had held that employing workers on temporary worker for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act. Therefore, this tribunal holds that the workmen concerned whose particulars are mentioned in the table above are entitled to be regularised on the rolls of management no.
1. hence, this issue i.e. Issue no. 3 is decided in favour of the workmen and against the managements.
Admittedly, there is no dispute with regard to espousal of the case. Perusal of file reveals that though the workmen have not examined any witness in this regard, however, they have in their POIT No. 67/2016 Page 28 of 30 affidavits have stated that they are the members of the 'Delhi State General Worker Congress' and the union has properly espoused their claim. Even otherwise, in the cross-examination of WW-1 he has categorically admitted that he became the member of the Union since 1989 and used to give the subscription to the Union regularly, though he was not awre of the name of the Union. He in his cross- examination conducted by ld. AR for the management has categorically stated that he might have the rceipt of the subscription fee paid by him to the union and he can produce the receipt of the subscription fee paid by him from the year 1989 till date. He in his cross-examination conducted by the ld. AR for the mangement deposed that in the year 1989 he used to pay Rs. 2 as subscription fee to the Union, though he is not aware about the strength of the union. However, neither the management sought for production of such subscription receipts from the workman nor controverted the deposition of the workman in this regard and same remained uncontroverted. WW-3 in his cross-examination has categoricaly deposed that he is the member of Delhi State Geneeral Workers registered Union and identified and proved the document Ex. WW3/3, which is the contribution made by him to the Union. WW-5 in his cross-examination conducted by ld. AR for the management has categorically admitted that he contributed towards the Union (Delhi State General Wroker Congress (Registered) fee/prescription and proved the receipt in this regard as Ex. WW5/M1. Thus, onus was upon the management to sought production of such receipts if any from the workmen, which management did not chose to take POIT No. 67/2016 Page 29 of 30 resort to. In view of the same workman has been able to prove the espousal of the present claim by the union.
Relief:-
40. In view of the above, this tribunal holds that the services of the workmen as mentioned in Annexure A to the terms of reference shall be regularized on the post of Security Guards w.e.f. their respective initial dates of joining as mentioned in the table above in regular pay scale with all consequential benefits either monetary or otherwise. The management no. 1 is directed to implement the award within 60 days of its publication, failing which, the management will be liable to pay interest @ 8 % per annum from the date of award to till the final payment is made. The award is passed accordingly.
41. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in the open Tribunal on this 14.09.2023 (Ajay Goel) POIT-I/RADC, New Delhi POIT No. 67/2016 Page 30 of 30