Delhi District Court
Sh. Mehar Singh vs M/S. Globe Security Service on 7 July, 2014
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID NO. 148/10
IN THE MATTER BETWEEN:
Sh. Mehar Singh, S/o. Sh. Jaishi Ram
Through :
Sh. RP Sharma Advocate,
Chamber no. 985, Patiala House,
New Delhi : 110 001.
.........Workman
AND
M/s ET Trav - AIDES Pvt. Limited,
59 - IInd Floor, Bisham Pitamah Marg,
Opposite B Block, Bus stop, Defence colony,
New Delhi : 24.
M/s. Globe Security Service,
House No. 175, Sector : 15,
Faridabad, Haryana.
.......Management
Date of Institution : 16.03.2009
Date of arguments : 09.04.2014
Date of award : 07.07.2014
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 1 out of 27
AWARD
1 The workman/claimant has filed a direct claim petition
against the above named management against his illegal
termination from service.
2 Brief fact has stated in the statement of claim are that
he was appointed as driver w.e.f. January 1st, 2005 with
management no. 1 and his last drawn salary was Rs. 4057/ per
month. Despite this, he was getting an allowance of Rs. 300/ per
month for maintaining mobile. The management was not keeping
proper record for leaves, appointment letters, holidays, overtime
wages as required under Delhi Shops and Establishment Act and as
per Minimum Wages Act and other provisions of Labour Law. The
management was making deduction from the wages of the
workman towards EPF and ESIC but it had not issued any ESI Card
to the workman due to the workman was not getting proper ESI
benefits. The workman was driving vehicle of the management no.
1 and the management no. 1 was supervising and controlling the
work and the duty of the workman. Management No. 2/Contractor
was also kept by the management no. 1 for the name sake only to
the deprive the workers benefit of regular employees. The duty
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 2 out of 27
performed by the workman was of perennial nature. The
management carrying on its business 24 hours a day and was
taking extra duty from workman from 11 hours of a day and was
being over time wages @ Rs. 12/ per hour whereas entitled to
receive wages @ Rs. 30/ per hour. He performed extra duty of
7138 hours from January 2005 to 26.06.2008 and such an entitled
for receiving balance amount. The management was not allowing to
avail weekly off days and was not paying earned leave and bonus
which he was entitled to receive form January 2005 to 26.06.2008.
The further stated that he was demanding appointment letter,
overtime wages, leave, bonus and due to which management was
not happy with him and was finding way to harass him and
terminate him from service. Further stated that he went to leave to
his native place (Himachal Pradesh) form 31.05.2008 to 25.05.2008
and when he came back and reported for duty on 26.05.2008
management did not allowed him to resume duty and orraly told
him that his service is no longer required. He was not paid any
compensation, no notice was given, neither any reason was
assigned for termination. He worked for more than 240 days in year
and his termination was wrongful, illegal and unjustified.
Therefore, he claimed relief of reinstatement in continuous service
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 3 out of 27
full back wages and all other consequential benefits. He also stated
the he sent a legal notice on 9th February, 2009 which was served
upon management but management had not acceded to his demand.
3 Per contra the management has filed the written
statement in which denied all the contents made in the statement of
claim. The management no.1 has taken preliminary objection that
there is no employer employee relationship exist between the
claimant and the management no. 1.
On merits of the contents of statement of claim were
denied as incorrect. It is denied that workman was working with
the management no. 1 since 01.01.2005 and his last remuneration
was Rs. 4057/ per month alongwith allowance of Rs. 300/ per
month for maintaining mobile. It is stated that he was the employee
of management no.2 M/s Globe Security Service and he was
deployed by management no.2 by virtue of agreement dated
01.05.2006. It is denied that management was not keeping proper
records of leaves, appointments letters, holidays, over time wages
as required under Delhi Shops and Establishment Act. Further,
denied that management was deducting ESI/PF contribution from
the salary claimant and stated that the ESI/PF benefits were
extended to claimant by management no. 2. It is also denied that
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 4 out of 27
management no. 1 supervising and controlling the duties of the
workman. It is stated that he was deployed by the management no.
2 to work as driver and he was not direct controlling and
supervision of management no. 2. It is also denied that
management was carrying on business for 24 hour a day or
claimant performed his duty for more than 12 hour a day or that
management was paying Rs. 12/ per hour as over time. Further,
denied that any right an accrued in favour of claimant to receive the
over time wages @ 30/ per hour from management no. 1 that he
performed extra duties of 7138 hours. He also denied that the
workman is entitled to receive payment towards leave and other
benefits from 01.01.2005 to 26.06.2008. It is also denied that the
management no. 1 did not allow the workman to resume duty form
26.06.2008 or that he work continuously for years and had worked
for more than 240 days. It is stated that since he was not employee
of the management, therefore, no question of his reinstatement
management no. 1 arise.
4 The management no. 2 could not be served despite
sending number of notice time. Therefore, vide order dated
15.05.2013, management no. 2 was deleted as party. On the same
date following issue were framed:
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 5 out of 27
(i) Whether there is no relationship
existed of employeremployee
between the workman and
management no. 1. OPM
(ii)Whether services of workman
is terminated illegally and/or
unjustifiably by the
management no. 1. OPW
(iii) Relief.
5 In orders to proved his case workman examine himself
as WW1 and led his evidence by a way of affidavit WW1. He led
upon document Ex WW1/1 and Ex WW1/2. He was cross
examined by the management no. 1.
6 To disprove the claim of the workman, the
management has examined Sh. Adil Khan as MW1 who filed his
evidence through an affidavit Ex. MW1/A and also relied upon
documents Ex. MW1/1 to MW1/2 and mark A to D and Mark I, K,
L and M. He was cross examined at length by the AR for the
workman.
7 The arguments were hard from Sh. Neeraj Choudhary,
AR for the workman and Sh. Satender Verma, AR for the
management. It is argued by AR for the workman that since
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 6 out of 27
management no. 1 has admitted that workman was working with
the management no. 1 and was driving management no. 1 vehicle
therefore, onus is shifted upon to the management to prove that he
was employee of contractor. He further argued that workman was
shown later on in the record of contractor though he was employed
with management no.1. He also argued that contract between
management no. 1 and 2 is sham & Camouflage contract. Hence,
claimant be treated as employee of management no. 1 . He further
argued that since service of the workman terminated illegally
therefore, he should be reinstated with back wages. He relied upon
judgements Ashok Hotel vs Their workman W.P.(c) 14828/2006 dt.
19.12.2013, Bharat Heavy Electrical Ltd vs State of U.P.
2003111LLJ 216, GM, ONGC Shilchar vs ONGC Contractual
worker Union 2008LLR 801,Hussain Bhai Calicut Vs Alath
Factory Thozhilali Union Khozikhode AIR 1978 SC 1410 ,
Workmen of the Food Corporation of India vs. M/s. Food
Corporation of India, C. A. No. 1055 (NL) of 1981 dt.28 Feb 1985
th
IILLJ4.
8 On the other hand, Ld. AR for the management has
argued that onus is upon the workman to prove that he is employee
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 7 out of 27
of management no. 1 and said burden is never shifted. He also
argued that workman has failed to led any cogent evidence in this
regard. The management has proved the agreement between the
management no. 1 and 2 by which claimant was deployed with the
management no. 1 hence it is proved that claimant was employee
of management no. 1. He also argued that onus is on the workman
to prove that contract between both the managements was sham &
camouflage but workman has failed to led any evidence to prove in
this regard. He relied upon the judgements, SC Workman of
Neelgiri Coop. Marketing Society Ltd. Vs. State of Tamilnadu &
Others; LLR 2004 page 351 , Municipal Corporation Faridabad
Vs. Sriniwas;SLT 2004 V Page 566 SC , Rajasthan State Ganga
Nagar S. Mills Ltd. Vs. State of Rajasthan & Another; SLT 2004 V
Page 686 SC,Bank vs. Presiding Officer & Another; AD V 1999
Delhi 514 UCO ,Suresh Chand Mathur Vs. Harish Chand
Mathur;AD IX 2010 Delhi 546 , Delhi Chander Sain And othrs vs.
JB Garments; etc.LLR 2009 Page 959
9 I have considered the arguments and gone through the
record. My issue wise finding are as under:
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 8 out of 27
ISSUE NO. 1
"Whether there is no relationship
existed of employeremployee between
the workman and management no.1.
OPM"
10 The management in its written statement denied the
relationship of employer - employee. It is testified by MW1 Adil
Khan in his testimony led by an affidavit Ex. MW1/A that he is
manager of M1 and workman was never appointed by M1 but he
was an employee of M2 i.e. Group Security and he was deployed
his duties by virtue by agreement dt. 1.5.06 Ex. MW1/2. He
further deposed that management has entered into an agreement
with M2 on 1.5.06 to provide contract employee. The management
no. 2 was an independent legal entity registered under EPF, ESI
and MP Act and management no. 2 was making the monthly
payment to the workman. He further deposed that contribution in
ESI/PF was also being deposited by the M2 vide ESI challan Ex.
MW1/3 and 1/5 and PF challan MW1/6 to 1/8 and form No. 6
MW1/9 and 1/10 to 1/11 however since these documents were
photocopies therefore, ESI challan were deexhibited and marked
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 9 out of 27
as D to I, PF challan were K and statement of accounts mark L and
payment vouchers mark M. He further deposed that Management
no.2 continue to run the service of Management no.1 till June,
2008. Management no.2 sent a legal notice on 31.3.09 regarding
the payment of Rs. 644500/ and the said notice was replied by the
Management no.1 on 13.4.01 and the matter was sorted out
between them as per agreement dt. 18.6.09.
In his cross examination he stated that stamp paper of the
agreement Ex. MW1/1 was purchased on 19.6.09 but he do not
know the date of which the said agreement was signed. He denied
the suggestion that agreement dt. 01.05.2006 was never executed
and agreement EXMW1/1 is a forged and fabricated document. He
further stated that the work of the driver is permanent nature and
management maintained the muster role, attendance register, salary
register, balance sheet, ledger and vouchers. He admitted that
management had not filed the said record in the court however, he
denied that the said record was not filed deliberately to hide the
truth. He stated that he do not know whether the management
company is registered under the provisions of Contract Labour
(Regulations & Abolition) Act 1973. He further deposed that
contractor was having 52 employees. He do not know whether the
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 10 out of 27
contractor i.e. Management no.2 was having licence under the
provision of contractor Labour (Regulations & Abolition) Act. He
further stated that workman was working as driver. He denied the
suggestion that workman used to collect the payment from the
customer during his tenure. He admitted that workman was
employed on the vehicle of the management. The company used to
decide which driver is to be deployed on which tour. Usually any
aggrieved customer make complaint of any driver to the company
officials vol. same used to be forwarded to the management no. 2
for action. The complaint used to forwarded orally. He admitted
that proforma Ex. MW1/W1 is similar to proforma of M2 and
admitted that the customer used to hand over the said proforma to
the driver. He admitted that customer also gave their remarks about
the service of the driver on the aforesaid like proforma. He denied
the suggestion that the workman was the employee of the
management and the management no. 2 is a fake company. He
denied the suggestion that the workman was employed by
Management no.1 directly on 1.1.05. It is further denied that after
April, 2006, the workman's record were shown with the M2
deliberately. He admitted that no notice of change of condition was
served upon the workman under section 9 of the ID Act. He denied
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 11 out of 27
the suggestion that the workman was proceeded on leave from
13.5.08 to 25.5.08 after taking permission from management at his
native village. He further denied that when the workman came
back on duty on 26.5.08 he was not given duty. He also denied the
suggestion that his services were terminated on 26.6.08 by Rajesh
Loomba. He admitted that Manish was employed as manager with
the M1. He stated that he again cannot tell whether Sh. Banwari
Lal Supervisor, Jeevan and Alok - Duty Incharge were employed
with the M1. He voluntarily stated that he has not heard the names
of these persons.
11 Thus on perusal of the testimony of MW1 it is
evident that he has completely denied that the claimant being the
employee of M1 and only stated that he was the employee of M2
and was deployed with the M1 as contract labour.
12 On the other hand, the workman in order to prove that
he is the employee of Management no.1 examined himself as WW1
and has almost reiterated the same facts as stated by him in the
statement of claim. He deposed that he was appointed as driver by
the M1 on January 1st, 2005 on the post of Driver at the last drawn
salary of Rs. 4057/ per month. He further deposed that M2 was a
sham contractor and M1 in order to deprive him the legal facilities
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 12 out of 27
started showing his record with M2. He also deposed that the
management did not give him appointment letter and used to
deduct contribution of ESI from his salary but no ESI card was
provided to him and in the absence of same he was not given ESI
medical facilities. He further deposed that from 13.05.2008 to
25.05.2008 he went to his native village in Himachal Pardesh after
sanctioning leave and when he reported for duty on 26.05.2008 he
was not taken back on duty thus he was removed from the service
by Sh. Rajesh Loomba without assigning any reason and he has
worked more than 240 days in one calender year. He also deposed
that his job was to drive commercial car of the management and
his work was of perennial nature and his work was supervised by
Rajesh Lumba, Manish - Manager, Banwari Lal - Supervisor
Jeevan and Alok are duty Incharge. He was given expenses for tour
whenever he goes away by Jeevan and Alok. He never worked
under the control and supervision of M2. The contract between the
Management no.1 and Management no.2 dt. 1.5.06 is forged
contract. He has proved on record documents Ex. WW1/1 which is
legal notice dt. 9.2.09 and Ex.WW1/2 which is postal receipt of
sending the said notice. In his cross examination, he admitted that
except the documents already on record he has not filed any
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 13 out of 27
document on record to prove that he was working with the
management no. 1 since 1.1.05 as a permanent employee or that he
was appointed by Management no.1. He admitted that Management
no.2 is situated at Faridabad. He denied that he was appointed by
Management no.2. He further denied that Management no.1 and
Management no.2 had entered into an agreement dt. 1.5.06 and he
was deployed with management no.1 by virtue of said agreement.
He denied that his salary was paid by Management no.2. He
admitted that ESI and PF was being deducted from his salary. He
admitted that PF was being deducted by Management no.2 under
insurance no. 4610217 and ESI was also deducted by M2. However
he vol. stated ESI/PF was deducted by Management no.1 the same
was being deposited by Management no.2. He denied the
suggestion that he was withdrawn by the Management no.2 on
26.3.08 or that thereafter, he did not discharge any duty with
Management no.1. He stated that he has not filed any document
regarding the duty after June, 2004 to December, 2007. He has not
filed any document to prove that TA DA expenses or wages used to
be paid by Management no.1 officials. He admitted that prior to
February, 2009 he did not sent any demand notice or raised any
dispute against the Management no.1.
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 14 out of 27
13 I am agree with the contention of Ld. AR for that onus
is upon the workman to prove that he is the employee of the
management as held in In N.C. John Vs. Secretary Thodupuzha
Taluk Shop and Commercial Establishment Workers Union and
others 1973 Lab, IC 398, the Kerala High Court relied upon in
Nilgiri case(supra) it is held that :
"the burden of proof being on the workmen to establish the
employeremployee relationship and adverse inference
cannot be drawn against the employer that if he were to
produce books of accounts they would have proved
employeremployee relationship."
In Range Forest Officer Vs. S.T. Hadimani, 2002I,
LLJ, 1053, it was held that:
"..... In our opinion the Tribunal was not right in placing
the onus on the management without first determining on
the basis of cogent evidence that the respondent had
worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year proceeding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. In case of R.M. Yellatti Vs. Assistant Executive DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 15 out of 27 Engineer, 2006 (108) FLR 213 SCC wherein it was held by the Apex Court that:
" Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the aforestated judgments we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In cases of termination of services of daily wages earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workmen (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wages register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statement made by the claimant/workmen will not suffice in the matter of discharge of the burden placed by law on the workmen to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case."
14 Recently in "Mohd. Zulfikar Ali vs (WAKF) Hamdard Laboratories, Through, its Head HR,P&A ILR(2013)IV Delhi", while discussing all most all the previous DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 16 out of 27 judgement Division Bench of our own High Court has held that onus is on the workman to proved that he is workman and completed 240 days in a year preceding his termination. 15 As evident from the testimony of the workman he has deposed that he is employee of the Management no.1 and was appointed in the year 2005 on the post of Driver. However in his statement of claim he has deposed that deduction from his wages toward EPF and ESI was done by the management but he was not got issued the ESI card due to which he was not getting proper ESI facilities/benefits hence he has not mentioned that who has got him registered in ESI and PF. In cross examination he categorically admitted that ESI and PF were provided by M2 and its contribution was also deducted by M2. The workman himself has stated in his affidavit EXWW1/A that from April 2006 management started showing his record with management no.2. Workman has failed to explain why he has not complaint to management or any other person when management no.1 started showing his record with management no.2. which only give two presumption either workman was not working with management no.1 or he was consented party to it. In both these cases workman become employee of management no.2 from the said date when allegedly DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 17 out of 27 his record is shown with management no.2. In my view to cover the negative effect of ESI and PF record workman has taken the false plea that management started showing his record with M2 in year 2006. Hence said defense appear to be after thought. Thus, from his testimony itself, it is proved that he was the employee of Management no.2 and not of Management no.1. He has also stated that he was being paid wages by M1 but as stated above he has not produced any document in this regard. Even otherwise oral testimony of a person cannot be accepted as proof of employment until it corroborated by other cogent oral and documentary evidence as held in " Range Forest Officer Vs. S.T. Hadimani" (supra) .
The workman is required to prove his employment by way of cogent documentary evidence like appointment letter wages slip, muster roll, ESI PF record or any other document in similar nature as held in Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006LLR551. In this case our own High Court held as under: "14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 18 out of 27 the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. 16 The workman has proved on record only two documents i.e. Legal notice sent by AR on 9.2.09 and the postal receipts of the same. These documents do not prove that he is the employee of the management no. 1. Therefore, in these circumstances, I hold that workman was the employee of the management no. 2 and not of management no. 1.
17 Further I am agree with the contention of Ld. AR for management that onus is upon the workman to prove that contract between the principle employer and contractor sham and camouflage contract but no such evidence has been led by the workman except his oral testimony. I do no find contention of the AR for the workman tenable that since workman had deposed that he worked under the control and supervision of management official namely Rajesh Loomba, Sh. Banwari Lal Supervisor, Jeevan and Alok - Duty Incharge were employed with the M1, therefore contract is sham and camouflage. On perusal of the statement of claim filed by the workman I find that in the said statement of claim he has not stated the said facts hence same is DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 19 out of 27 beyond pleadings and are improvements. Even otherwise also workman has placed on record no document to prove that they were supervising the work of claimant. Further it is quite obvious that when the workman has been deployed with Management no.1 to work as driver then official of management no.1will direct him on which tour he has to go as driver and they will naturally pay him expenses of tour if going out of station but that does not mean he was working under the supervising and control of management no.
1. In cases Ashok Hotel vs Their workman W.P.(c) 14828/2006 dt. 19.12.2013, Bharat Heavy Electrical Ltd vs State of U.P. 2003111LLJ 216, GM, ONGC Shilchar vs ONGC Contractual worker Union 2008LLR 801 relied upon by workman Higher courts has held while relying upon Hussain Bhai Calicut Vs Alath Factory Thozhilali Union Khozikhode AIR 1978 SC 1410 that :
"5. The true test may, with brevity, be indicated once again. Where a worker or group of workers laborers, to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the conspectus of factors governing DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 20 out of 27 employment, we discern the naked truth though drapped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor, Myriad devices, halfhidden in fold after fold of legal form depending on the degree of concealment needed the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer based on Articles 38, 39, 42,43 and 43A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law an not be misled by the maya of legal appearances.
7.6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make believe, trappings of detachment from the Management cannot snap the real lifebond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
18 But in my view to prove that contract is sham and camouflage something more is required to proved beside economic control. The test is who pays salary,who could take disciplinary action, or remove workman or deployed at a particular place. In International Airport Authority vs. International Air Cargo Workers union and another 2009 (13) SCC374, it is held that :
8." The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 21 out of 27 employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be 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."
19 Hence in view of aforesaid judgement I held that even DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 22 out of 27 if workman is working as per direction of aforesaid management official with regard to customer he attend, where he has to go on tour or official of the management no. 1 used to pay him tour expenses does not amount to control and supervision. The workman has failed to led any reliable evidence like wage slip or salary register to prove that was being paid salary by management no. 1. On the other hand since contribution of ESI & PF contribution of workman was paid by Contractor/management no. 2 therefore it could be presumed that he was being paid salary by management no.1. No cogent evidence has been led by workman to prove that management could take disciplinary action, or remove workman from service. MW1 has categorically deposed that when any customer complaint of any driver same used to be forwarded to management no. 2. There is no ground to disbelieve the testimony of MW1.
20 As far as judgment Workmen of the Food Corporation of India vs. M/s. Food Corporation of India, C. A. No. 1055 (NL) of 1981 dt.28 th Feb 1985 IILLJ4 is concerned is not applicable as in that case workmen were appointed through a contractor and afterwards the contract system was abolished and the handling DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 23 out of 27 labour workman were paid wages by FCI directly and when FCI tried to reinduct the contractor as an intermediary. The workman complaint and notice u/s 9A of the I.D. Act was issued to the management. In these circumstances, it was held that by the Hon'ble Supreme Court that where ever management proposed to have any change in any condition of the service applicable to any workman he is required to give notice of desire or his intended change and held that once workmen have become the workmen of Corporation it is not permissible to treat the workmen as workmen of contractor but in this case, as discussed above the workman have failed to prove that they were ever employed by the management and then were transfer to contractor or that he was being paid wages by Management directly, hence the judgement is not applicable in the present case. Hence, in these circumstances, in my view the workman has failed to prove that he has worked under the control and supervision of the management no. 1. 21 So far as the contention of the ld. AR for the workman that the management is fake entity the said contention is itself contradicted by the workman in his cross examination he has admitted that management no. 2 was situated in the Faridabad therefore, it was not a fake entity.
DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 24 out of 27 22 The other contention of the Ld. AR for the workman that the agreement of providing contract labour MW1/1 is fake agreement, is not tenable as no such evidence has been led by workman. The Contract Labour (Regulation & Abolition) Act, 1970 further do not make an unregistered agreement illegal. Undoubtedly, the said Act provide that the Principle employer should be registered under section 7 of the Contract Labour Act and the Contractor should get licence U/s. 12 of the Act and in case of violation, however, the Act only provide punishment of imprisonment but it does not make contract of providing labour by Contractor to the Principle employer illegal, unless providing labour to that establishment/industry has been prohibited as per section 10 of the Act. Hence, in my view, non compliance of section 7 or 12 of the Act ipsofacto make a contract labour an employee of Principle employer unless the contract is sham & camouflage or the Contractor is fake identity. As stated above workman has admitted that management no. 2 was situated in Faridabad. No evidence has been led by the workman that both the managements were owned by same employer. Hence, workman failed to prove that management no. 2 is a fake identity created only DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 25 out of 27 with the purpose to deny legal facilities to its employees by management no. 1. Hence, in these circumstances, I held that workman has failed to prove that contract between management no. 1 and 2 to proved labour on contract was sham & camouflage. Hence, I hold that the workman has failed to prove that he was employed by management no. 1. The issue no. 1 is decided accordingly.
ISSUE NO. 2
"Whether services of workman is terminated illegally and/or unjustifiably by the management no. 1."
23 In view of the above discussion and findings as the workman has failed to prove his employment relation with M1 then there is no question arise of termination of services of the workman by the management no. 1. Hence I held that workman has failed to prove that his service was illegally terminated by management. Hence, this issue is decided against the workman.
RELIEF 24 In view of my findings on issue no. 1 and 2, the claimant is not entitled for any relief as claimed from management DID No. 148/10 Mehar Singh Vs. M/s. ET Trav Aides Page No. 26 out of 27 no. 1 as claimed in his statement of claim. The claim petition is dismissed. Reference is answered accordingly. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. File be consigned to Record Room. Announced in Open Court on this 7th July, 2014.
(SANJEEV KUMAR) Presiding Officer Labour Court Karkardooma Courts, Delhi.
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