Delhi District Court
Kapil Kumar Sharma vs The Bses Yamuna Power Ltd on 6 July, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-010573-2017
Ref. No. F.24(4)/Lab./ED/2011/1108-1115 Dated 29.04.2011
LIR No. 3266/2017
Sh. Kapil Kumar Sharma S/o Sh. Jagdish Sharma (as mentioned at
Serial No. 87 in Annexure -B),
R/o 1/4307-A, Ram Nagar Extension,
Mandoli Road, Shahdara.
Delhi-110032.
Through Bhartiya Mazdoor Sangh (Delhi Pradesh),
5239, Ajmeri Gate, Delhi-110006. .....Workman
VERSUS
1. M/s. BSES Yamuna Power Ltd.
Shakti Kiran Building, Karkardooma,
Delhi-110092.
2. M/s. Teamlease Services Pvt. Ltd.
771, 7th Floor, Aggarwal Millenium Tower-II,
Plot No. E-4, Netaji Subhash Palace,
District Centre, Wazirpur, Pitam Pura,
Delhi-110034.
3. M/s. Adecco Flexione Workforce & Solutions Limited,
39, 1st Floor, Pusa Road, Karol Bagh,
New Delhi-110005.
4. M/s. Safeguards Human Resourcing Pvt. Ltd.,
220, 1st, Floor, DDA Cycle Market,
Jhandewalan, Delhi-110055. ....Managements
Date of Institution of the case : 30.04.2011
Date on which Award is passed : 06.07.2024
AWARD
1. By this award I will dispose of the reference dated 29.04.2011
received by this Court in terms of Section 10(I)(d) and 12(5) of the
Industrial Disputes Act, 1947 vide Ref. No.
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 1 of 32
F.24(4)/Lab./ED/2011/1108-1115 Dated 29.04.2011 from Deputy
Labour Commissioner (East), Labour Department, Govt. of NCT of
Delhi qua the workman Sh. Kapil Kumar Sharma S/o Sh. Jagdish
Sharma, whose name is mentioned at Serial No. 87 of Annexure-B to
the reference, relevant portion of which reads as under:-
"Whether employee and employer relationship exists
between workmen Sh. Kishan Sharma S/o Sh. Ram Lal
Sharma & 91 Ors. as mentioned in Annexure-B and M/s.
BSES Yamuna Power Limited or between the workmen and
M/s. Adecco Flexione Workforce & Solutions Limited and
if so, whether their services have been terminated by the
management under the garb of transfer illegally and/or
unjustifiably; and if so, to what relief are they entitled and
what directions are necessary in this regard?"
2. The aforesaid reference was received in this Court on
30.04.2011. A joint statement of claim was thereafter filed on behalf
of 187 workmen, mentioned in Annexure-I to Reference dated
29.04.2011, on 28.01.2012 and the claims of different workmen were
subsequently segregated in terms of order dated 01.09.2017 of Ld.
Predecessor of this Court.
3. Brief case of the workman as per the aforesaid statement of
claim is that he had been working with management no. 1 w.e.f.
02.04.2004 as a Lineman Associate against last drawn wages of Rs.
6,698/- under Employee Code FW003930. It is further his case that
though it is the management no. 1, who used to exercise complete
control over the workman including the instructions for performance
of day-to-day work, sanction of leave, transfer of the workman from
one place to another, recording of attendance of the workman in the
register maintained in respect of regular employees of management
no. 1, supervision of entire work of the workman, payment of salary
of the workman and deduction and deposit of ESI and PF
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 2 of 32
contributions on his behalf, however, no statutory benefits were being
provided by management no. 1 to the workman which were being
provided to its employees. It has further been alleged in the statement
of claim that the management no. 1 used to illegally show the name of
workman as an employee of different contractors i.e. managements
no. 2 to 4 from time-to-time despite the fact that the workman was
appointed by the management no. 1 at a permanent post and was
working under the complete control of management no. 1 alone.
4. When, according to him, the workman objected to the aforesaid
illegal acts of management no. 1, management no. 1, instead of
mending its ways, in connivance with managements no. 2 to 4, has
illegally terminated the services of the workman w.e.f. 15.02.2011
without any advance notice/notice pay or service compensation. It is
further his case that the management no. 1 has failed to reinstate him
in the job despite repeated visits and requests of the workman and
despite receipt of demand notice dated 21.02.2011 on 22.02.2011. The
workman, according to him, was thus constrained to approach the
Labour Department through his union seeking appropriate action
against the managements including reinstatement of the workman in
job with all consequential benefits, however, due to non-cooperation
on the part of managements in conciliation proceedings, the Labour
Department was constrained to send the present reference to this
Court.
5. Finding merits in the claim of the workman, according to him,
the Assistant Labour Commissioner, District East, Delhi has found the
managements guilty of unfair labour practice and had instructed the
department vide order dated 27.11.2012 to obtain approval from
Hon'ble Lieutenant Governor of Delhi to punish the managements.
The termination of the workman, according to him, is in violation of
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 3 of 32
provisions of Section 25F, G and H of the Industrial Disputes Act,
1947 and Rules 77 and 78 of the Industrial Disputes (Central) Rules,
1957. It is further his case that since he is unemployed from the date
of termination of his services by the managements, he is entitled to his
reinstatement with full back wages and other consequential benefits.
Workman has thus prayed for an award in the aforesaid terms in his
favour.
6. All the managements appeared in response to notice of statement
of claim and a written statement was filed on behalf of management
no. 1 on 15.01.2013. Management no. 1 has refuted the claim of the
workman against management no. 1 on the ground that there did not
exist any employer-employee relationship between the management
no. 1 on the one hand and the claimant on the other. It is the case of
management no. 1 that the present workman was an employee of an
independent contractor i.e. management no. 3, with whom the
management no. 1 had entered into a service agreement. Under the
aforesaid service agreement, according to management no. 1,
management no. 3 had been providing various services to
management no. 1 including services for the Operation &
Maintenance Department of management no. 1. It was, in order to
render the aforesaid services to management no. 1, according to
management no. 1, that management no. 3 had deployed the claimant
at the establishment of management no. 1.
7. It is further the case of management no. 1 that not only
management no. 1, but also, the management no. 3 had been duly
registered under the Contract Labour (Regulation and Abolition) Act,
1970 and requisite certificates/licences have been issued in their
names by the Competent Authority under the provisions of the
aforesaid Act. The entire record of employment of the workman,
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 4 of 32
according to management no. 1, was being maintained by
management no. 3 and it is management no. 3, who had issued the
appointment letter to the claimant. Even the salary of the claimant,
according to management no. 1, was being paid by management no. 3,
who was also issuing salary slips to the claimant. As per management
no. 1, even the identity card in the name of claimant was issued by
management no. 3, being his employer.
8. Under the aforesaid circumstances, according to management no.
1, the claimant had been working under direct control and supervision
of management no. 3 at the establishment of management no. 1 and it
was management no. 3, who was fully and solely responsible for
payment of wages to the workman and for compliance with all the
statutory obligations such as Provident Fund, ESI, etc. in as much as,
management no. 3 had obtained independent Code Numbers in its
name under the EPF Act, ESI Act and other labour laws. Even the
disciplinary action against the workman, according to management no.
1, was being taken by management no. 3, besides sanctioning the
leave of the claimant. Under the aforesaid circumstances, according to
management no. 1, no claim of the workman is maintainable against
management no. 1.
9. It is further the case of management no. 1 that as a measure of
prudent effective outsourcing, to make the processes, activities and
functions more effective and to increase productivity resulting in
benefit to the consumers of Delhi, the contract of management no. 3
stood ceased in respect of operation and maintenance w.e.f.
14.02.2011. New contractors, according to management no. 1, were
thereafter awarded the work related to Operations & Maintenance
Department of management no. 1 w.e.f. 15.02.2011 and considering
the experience of the present claimant and other employees and on
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 5 of 32
humanitarian grounds, the new contractors undertook to employ all
the employees of the present contractor including the claimant herein.
Out of total 187 claimants, according to management no. 1, 94
claimants initially joined the new contractors and on 02.12.2011
during the conciliation proceedings, with the intervention of Labour
Authorities, management no. 3 entered into a settlement with the
workmen union namely Bharatiya Mazdoor Sangh on behalf of 82
claimants, whereafter, management no. 3 had agreed to take all 82
claimants on its rolls as fresh employees in a phased manner.
10. The aforesaid offer of employment of the claimants was initially
for a period of 90 days, however, the same was extendable from time-
to-time subject to performance of aforesaid 82 employees, however,
according to management no. 1, out of the 82 employees, merely
around 40 employees joined the services of management no. 3. Under
the aforesaid circumstances, according to management no. 1, since the
claimant was offered fresh employment by management no. 3, has
joined the fresh employment and is liable to be deputed for work with
any company on behalf of the contractor, there can't be said to exist
any relationship of employer-employee between the management no.
1 and the claimant.
11. Thus, according to management no. 1, there is no question of
termination of services of claimant by management no. 1, much less,
is there any question of alleged termination being illegal, in as much
as, the services of the workman could only have been terminated by
management no. 3 being his employer. He submits that no claim of
adoption of any unfair labour practice by management no. 1 had been
raised by the claimant during the entire period of his employment with
management no. 3 and hence, he is estopped from making a claim
regarding he being an employee of management no. 1 in the present
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017
Award dated 06.07.2024 Page 6 of 32
statement of claim. Management no. 1 has thus prayed for dismissal of
present claim of the workman.
12. Though, management no. 2 has also filed a joint written
statement to the joint statement of claim of the workmen, however,
since the reference to this Court qua management no. 2 has been
received only in respect of the employees/claimants mentioned in
Annexure-A, written statement was restricted by management no. 2 to
the claimants, whose names are mentioned in Annexure-A to the
reference. Since, the name of the present claimant finds mentioned in
Annexure-B to the reference, the written statement of management no.
2 is not relevant relevant for adjudication of present claim.
13. Management no. 3 has filed a separate written statement on
21.09.2012. It is the case of management no. 3, as per its written
statement, that management no. 3 is engaged in providing end to end
solutions in contractual staffing and takes on roll various contractual
and fixed term employees as per need. Such employees, according to
management no. 3, are being engaged to meet specific demands of the
clients and services of such contractual employees continue and end
with the projects/work for which he or she is employed. It is further
the case of management no. 3 that out of 91 employees, who have
filed the present claim against management no. 3, only 82 were
contractual employees of management no. 3, who were selected on
various posts of Field Associates or Lineman Associates and were
deputed with management no. 1. After completion of projects/work
for which the workmen were hired, according to management no. 3,
the workmen are free to move on and the respondent no. 3 do not hold
any objection on the workman joining any other job or company.
14. It is the case of management no. 3 that the present contract/work Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 7 of 32was initiated on 01.04.2010 and came to an end on 15.02.2011. It is further submitted by management no. 3 that the workman was never the regular employee of management no. 3 and in the conciliation proceedings, management no. 3 had informed the concerned official that it is ready to pay one month salary in lieu of one month notice to the workman, however, the workman did not accept the same. During pendency of the reference, according to management no. 3, a Memorandum of Settlement was duly executed between management no. 3 and Bhartiya Mazdoor Sangh, who had been representing the present claimant, in terms of which management no. 3 had agreed to allow 82 workers, who were on its roll to join duties as fresh employees in a phased manner within a period of one month initially for a period of 90 days extendable from time-to-time subject to performance of the workers and the availability of the job without prejudice to rights of both the parties in the present claim of the workman.
15. However, according to management no. 3, it had been able to keep the promise only in respect of 32 workers by procuring job for them, whereas, some of the workers did not agree to join on the ground that the job was not being offered with management no. 1. Management no. 3 has undertaken to give jobs to all the remaining workers while denying all the allegations regarding adoption of any unfair labour practice. Management no. 3 has also denied the allegations of the workman that he was not provided with any appointment letter or other statutory benefits. It is alleged by management no. 3 that the workman was duly issued the appointment letter, was paid his wages regularly and PF and ESI deductions were duly made by management no. 3 from his salary. Management no. 3 has denied the claim of the workman that it had terminated the services of the workman in violation of provisions of Section 25F, G Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 8 of 32and H of the Industrial Disputes Act, 1947 besides Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957. Management no. 3 has thus also prayed for dismissal of claim of the workman.
16. Although, management no. 4 has also filed its written statement on 20.12.2012, however, as has already been observed hereinabove, the present reference qua management no. 4 is only in respect of the claimants, whose names are mentioned in Annexure-C to the reference dated 29.04.2011, whereas, the present claim has been filed by the workman, whose name is mentioned in Annexure-B to the reference. The aforesaid written statement is thus not relevant for adjudication of the claim of the present workman.
17. Separate rejoinders to the aforesaid written statements were thereafter filed on behalf of workman on 02.04.2013, wherein, the workman has once again reiterated the averments made by him in the statement of claim and has denied the contrary averments made by the managements in their respective written statements.
18. Thereafter, on the basis of pleadings of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 30.07.2013:-
(i) Whether there existed any relationship of employer and employee between the workman and management no. 1? OPW.
(ii) Whether the workman mentioned at Sl.No. 1 to 15 & 22 left the job with management no. 2 on their own and there had been no relationship of employer and employee between the other workmen and management no. 2?
OPM2
(iii) Whether 82 workmen in the present claim were employed by management no. 3 on contractual basis and Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 9 of 3232 workmen joined the services of management no. 3 upon an increment while the rest workmen failed to join the job despite the offer by management no. 3?OPM3
(iv) Whether the workman ceased to be an employee of management no. 4 after 15.02.2011 after the expiry of contract between management no. 4 and management no. 1 and as such there existed no relationship of employer and employee between the parties? OPM4
(v) Whether the services of the workmen have been illegally and/or unjustifiably terminated and if yes, by which of the managements?OPW.
(vi) Relief.
19. The 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.WW-1/A along with following documents:-
(i) Mark-A(Colly): Copy of ID cards of workman issued by management no. 3.
(ii) Mark-B(colly): Copy of e-mails.
20. WW-1 was duly cross-examined by Ld. AR for management no.
1. During his cross-examination, he has produced the copy of his ID card Ex. WW-1/M-1 issued by his current employer M/s Easy Source HR Solutions Pvt. Ltd. Opportunity of all the remaining managements to cross-examine WW-1 was closed vide order dated 23.08.2018. No other witness was examined on behalf of the workman despite opportunity and hence, on a statement of Ld. AR for workman, workman's evidence was closed vide order dated 23.08.2018.
21. Management no. 1 has thereafter examined four witnesses in support of its case. Sh. Rakesh Koul, General Manager (HR) of management no. 1 has been examined by management no. 1 as MW-1 and he had tendered his evidence by way of affidavit Ex.MW1/A Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 10 of 32along with following documents:-
(i) Ex.MW1/1(running into 1 page): Authorization letter in favour of witness.
(ii) Ex.MW1/2 (running into 26 pages): Copy of the agreements between respondent no. 1 on the one hand and respondents 2 to 4 on the other.
(iii) Ex.MW1/3 (running into 01 page): Copy of certificate of registration of the establishment of management no. 1 under Contract Labour (Regulation and Abolition) Act, 1970.
(iv) Ex.MW1/5 (running into 169 pages) (colly): Sample copies of the appointment letters, wage register and muster roll.
(v) Ex.MW1/7 (running into 01 page): Copy of register of contractors.
(vi) Ex.MW1/8 (running in to 02 pages): Copy of memorandum of settlement dated 02.12.2011.
22. During his cross-examination, he has produced the copy of authorization letter Mark MW-1/A1 executed by Sh. Ramesh Narayanan, CEO, BSES in his favour authorizing him to apply for registration of BSES under Contract Labour (Regulation and Abolition) Act, 1970. He has also produced the copy of various registration certificates obtained by management no. 1 under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 with respect to various contractors in respect of years 2008 to 2012. He was also confronted with the statement of bank account of one of the claimants in the connected matter namely Sh. Vinod Kumar which is Ex. MW-1/W-1, a copy of order dated 14.12.2012 passed by Hon'ble Delhi High Court in WP(C) 7769/2012 Ex. MW-1/W-2 and copy of order dated 19.10.2015 passed by Govt. of NCT of Delhi Ex. MW-1/W-3.
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 11 of 3223. Sh. Harmesh Lal, Social Security Officer from ESIC, Regional Office, Rajendra Place, New Delhi was examined by management no. 1 as M1W2, who has tendered the following documents:-
(i) Ex.M1W2/1 (running into 01 to 163 pages): ESIC Registration number of M/s. Safeguards Human Resourcing Pvt. Ltd. along with Return of contribution from October 2010 to March 2011 except for the period from April 2010 to September 2010 as the same was not filed by the management.
(ii) Ex.M1W2/2 (running into 164 to 338 pages): ESIC Registration number of M/s. Teamlease Services. Ltd. and its sub code registration along with Return of contribution from October 2009 to March 2010 and April 2010 to September 2010.
24. M1W2 could not produce the ESI contribution returns of management no. 3 on the ground that the same were weeded out.
25. Ms. Neeru Thakran, Labour Officer from the Office of Joint Labour Commissioner, Shahdara and North East District has been examined by management no. 1 as M1W3, who has proved the certificate of registration of management no. 1 issued under Contract Labour (Regulation and Abolition) Act, 1970 along with its Annexures as Ex.M1W3/1 (colly) besides copy of online NCR Mark- M1W3/X regarding loss of file related to the settlement between the parties.
26. During her cross-examination, M1W3 has produced the original record of registration of management no. 1 under Section 7(2) of Contract Labour (Regulation and Abolition) Act, 1970 vide registration certificate dated 17.02.2004 and the record of its subsequent amendments Ex.M1W3/2 (colly). She has also brought the record of settlement dated 07.09.2011 between 73 workmen Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 12 of 32represented for M/s. Bhartiya Mazdoor Sangh and Ms. Safeguards Human Resourcing Pvt. Ltd. Ex.M1W3/3 (colly) besides Memorandum of Settlement dated 02.11.2012 between 82 workers represented M/s. Bhartiya Mazdoor Sangh Staff and M/s. Adecco Flexione Workforce & Solutions Limited Ex.M1W3/4 (colly).
27. Smt. Rashmi Kumar Singh, Senior SSA from EPFO, Regional Office, West Delhi has been examined by management no. 1 as M1W4, who has proved office order Ex.M1W4/1 authorizing her to appear before the Court and copy of record retention schedule Ex.M1W4/2.
28. All the aforesaid witnesses, except M1W4, were duly cross- examined by Ld. AR for workman and on a separate statement of Ld. AR for management no. 1, evidence of management no. 1 was closed vide order dated 27.03.2024. whereas, opportunity of management no. 3 to lead evidence in its defence was closed vide order dated 27.03.2024 after management no. 3 was proceeded ex-parte.
29. Matter was thereafter adjourned for final arguments which were heard on behalf of the workman and management no. 1, whereas, none has come forward on behalf of remaining managements to advance final arguments in the present case.
30. 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 02.04.2007 until the termination of his services w.e.f. 15.02.2011 and it is merely in order to defeat the legal claim of the workman in the present statement of claim that the management no. 1 had been showing the workman as an employee of contractors/managements no. 2 to 4.
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 13 of 3231. He submits that the management no. 1 has failed to prove that it was registered under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, nor either of the alleged contractors i.e. managements no. 2 to 4 were having any license under the provisions of the aforesaid Act. While relying upon the 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 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 4 were really camouflage or sham.
32. 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 4 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 no. 1, 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 judgment of Hon'ble Patna High Court in Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 14 of 32Employers in Relation to... Vs. Presiding Officer, Central 1999 (47) BLJR 2105 (Patna High Court).
33. On the other hand, it is submitted by Ld. AR for management no. 1 that the claimant has falsely claimed that he was under direct employment of management no. 1 and that in order to exploit the workman, the management no. 1 had been showing his name in its records as an employee of contractors/managements no. 2 to 4. He submits that the workman has failed to point out the period during which his name was allegedly shown by management no. 1 as an employee of different contractors/ Respondents no. 2 to 4. It is further submitted by him that though the workman has alleged in his statement of claim that the contracts, between the respondent no.1 on the one hand and remaining respondents on the other, were either sham or bogus, however, no reference regarding the contracts between the respondents being either sham or bogus 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, the workman cannot be permitted to take a plea either in his statement of claim or in his rejoinders to the written statements filed on behalf of managements or in his evidence by way of affidavit that he was either 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.
34. 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. 3 was having valid license issued under the provisions of the aforesaid Act. He submits Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 15 of 32that the copy of registration certificate of management no. 1 under Contract labour (Regulation and Abolition) Act, 1970 has already been tendered by MW1 in his evidence as Ex. MW-1/3 and by M1W3 as Ex. M1W3/1 (colly). He submits that the workman has failed to produce even a single document to prove his employment with management no. 1 or that he was working under direct control and supervision of management no. 1 and hence, the present claim is liable to be dismissed against respondent no. 1.
35. It has already been observed hereinabove that none has come forward on behalf of remaining managements to advance final arguments despite repeated opportunities. In fact, since the reference qua the present claimant has only been received against managements no. 1 and 3, other respondents/managements were not even required to make any submissions.
36. 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 30.07.2013 are as follows:-
Issue no. (i): Whether there existed any relationship of employer and employee between the workman and management no. 1? OPW.
37. A bare perusal of the statement of claim of the workman shows that the workman has alleged himself to be an employee of management/respondent no. 1 and has taken a plea that though, in order to exploit the workman, his name was being shown by the management no. 1 in its records as employee of managements no. 2 to 4 from time to time, however, he had all along been working under direct control and supervision of management no. 1. The workman has alleged that he was in employment of management no. 1 since Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 16 of 3202.04.2007 as a Lineman Associate against last drawn wages of Rs. 6,698/- per month till the date of termination of his services by the management no. 1 w.e.f. 15.02.2011.
38. On the other hand, management no. 1 has categorically denied the existence of any employer-employee relationship between the management no. 1 and the claimant and has taken a plea that the claimant was an employee of management no. 3 and was deputed at the establishment of management no. 1 pursuant to a contract between management no. 1 and 3. It is further the case of management no. 1 that the claimant had never been working under direct control and supervision of management no. 1 nor his services were ever terminated by management no. 1.
39. Similar stand was taken by management no. 3 in its written statement. As per the case of management no. 3, the claimant was a contractual employee hired by it for fulfilment of its obligations under the contract with management no. 1 and his term of employment was co-terminus with the term of agreement between management no. 1 and 3 and his services came to an end simultaneously with termination of contract of management no. 3 by management no. 1 w.e.f. 15.02.2011.
40. In view of the aforesaid pleadings of the parties, in my considered opinion, onus to prove that there existed any employer- employee relationship between the management no. 1 and the claimant, by virtue of his appointment by management no. 1 or by virtue of his working under direct control and supervision of management no. 1, was upon the claimant.
41. As has already been observed hereinabove, in order to discharge the aforesaid onus, the claimant has examined himself as the sole Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 17 of 32witness in support of his case and has failed to tender any document in his evidence which indicates that he had ever been employed by management no. 1. It is significant to note in this regard that the claimant has failed to place on record any appointment letter issued in his name by management no. 1. On the other hand, the copies of identity cards issued in his name by management no. 3 indicate that he was deployed at the establishment of management no. 1 by management no. 3.
42. During his cross-examination, he was found avoiding any clear response to the suggestion of management no. 1 that his salary was being paid in his bank account by the contractors and not by management no. 1 though he has admitted that deductions towards ESI and PF contributions from his salary were being made and deposited by the contractors. Though, he has admitted that his salary was being transferred in his bank account, however, he has failed to produce the statement of his bank account for which an adverse inference needs to be drawn against him that if produced, the same would have shown that his salary was not being paid by management no. 1 but by the contractors. Even the testimony of MW-1 regarding deduction and deposit of ESI and PF contributions on behalf of the workman by management no. 3 has remained uncontroverted.
43. Ld. AR of workman has sought to rely upon the admission of MW-1 during his cross-examination that salary of one of the co- worker of the claimant namely Sh. Vinod Kumar had been transferred to his bank account by management no. 1. A perusal of record reveals that during cross-examination of MW-1, he was confronted with statement of bank account of one of the claimants/co-worker of the claimant in the present case Ex. MW-1/W-1, which reflects certain credit entries in the said bank account during 05.05.2009 to Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 18 of 3205.08.2009 from management no. 1. The aforesaid document is relied upon by the workman to contend that the salary of all the claimants including the workman in the present case was being paid directly by management no. 1, which means that the claimant was a direct employee of management no. 1.
44. The aforesaid document is sought to be explained by MW-1 during his cross-examination by stating that the salary for certain period was directly paid by the management no. 1 to few employees of the contractors due to default on the part of contractors in payment to salary of the contract workers. No document to counter the said explanation of MW-1 has been brought on record by the workman. The very fact that statements of bank accounts of remaining workers, other than workman Sh. Vinod Kumar, and the statement of Bank account of even Sh. Vinod Kumar for the entire period of his alleged employment with management no. 1 has not been produced by the claimant, in my considered opinion, lends credence to the veracity of explanation given by MW-1 during his cross-examination. Even if, it is assumed for the sake of arguments that management no. 1 has directly paid the salary to the workman for a short duration due to default on the part of contractors, in order to fulfil its statutory obligations to pay the wages of contract workers, in my considered opinion, the aforesaid fact, by itself, is not sufficient to establish any employer-employee relationship between the management no. 1 and the claimant.
45. As has already been observed hereinabove, the workman has failed to produce any appointment letter issued in his name by management no. 1 and in fact, the copies of identity cards relied upon by the workman himself shows that the same were issued by the management no. 3 and not by management no. 1.
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 19 of 3246. 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 4 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 4 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.
47. 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 certificates of management no. 1 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 and Ex. M1W3/1(colly). 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 or for that matter management no. 3 did not have any licence under the provisions of the aforesaid Act, 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 in view of the fact that 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 29.04.2011.
48. The reference received by this Court in the present case is limited to adjudication of questions as to whether there existed any relationship of employer-employee between management no. 1 and the claimant or between management no. 3 and the claimant and whether the services of the workman have been illegally and/or Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 20 of 32unjustifiably terminated by the management under the garb of transfer and if yes, to what relief is he entitled. There is no reference received by this 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 4 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 4 on the other as mere camouflage.
49. 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.
Kapil Kumar Sharma v. BSES & Ors.LIR No. 3266/2017 Award dated 06.07.2024 Page 21 of 32
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)
50. Thus, in the absence of any reference on the aspect of the alleged contracts between management no. 1 and 2 to 4 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. Moreover, no evidence on the aforesaid issue has been led by the workman in the present case.
51. 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 4 were not having any license under the aforesaid Act, the workman should be considered to be under direct employment of management Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 22 of 32no. 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.
52. 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 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).
53. 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. Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 23 of 32in 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).
54. Relevant observations of Hon'ble Constitution Bench of Supreme Court in Steel Authority of India's case supra in this regard are as follows:
"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."
55. 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, the workman has failed to Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 24 of 32produce any document which indicates that he had been working under direct control and supervision of management no. 1 though he has tendered few documents in his evidence.
56. A bare perusal of the documents produced by the workman shows that none of these are sufficient to establish any direct control and supervision of the workman by management no. 1.
57. Ld. AR for workman has heavily relied upon the copy of some e- mails purportedly exchanged between the officers of management no. 1 indicating award of contract to a new contractor w.e.f. 15.02.2011 and transfer of all outsourced staff from the old contractor to the new contractor w.e.f. 15.02.2011 and seeking confirmation of the same from all concerned, to contend that it was management no. 1 who was exercising direct control and supervision on the appointment, termination and transfer of contractual employees. The said submission of Ld. AR for workman is sought to be controverted by Ld. AR for management no. 1 on the ground that neither the aforesaid e-mails have been proved by the workman as per applicable rules of evidence since the same are not accompanied by any certificate u/s 65- B of the Indian Evidence Act, 1872, nor the same were ever addressed to the employees.
58. Ld. AR for management no. 1 submits that the said e-mails at the best communicates the decision of the new contractor to hire all the contractual workers of the previous contractors to all the departments of management no. 1 for their information and appropriate action. I find force in the aforesaid submission made on behalf of Ld. AR for management no. 1. It is significant to note in this regard that the workman has tendered the copies of the said emails in his evidence without any certificate u/s 65-B of the Indian Evidence Act and has Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 25 of 32even failed to disclose the source of the same. In any case, there is nothing in the aforesaid e-mails which indicates that the management no. 1 had any control over appointment, termination or transfer of contractual workers.
59. Ld. AR for workman has also relied upon certain documents in the nature of transfer/posting orders filed by one of the claimants/co- worker namely Sh. Dhir Singh in the connected matter LIR 3035/2017 to contend that the said documents go on to prove that the posting and transfer of contract workers was under the control of management no.
1. However, in my considered opinion, merely because, management no. 1 was required to exercise some control as to the posting and 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. More so, when the workman was assigned to the management no. 1 by management no. 3, his salary was being paid by management no. 3, and ESI and PF deductions on his behalf were being made and deposited by management no. 3. Even otherwise, the workman Dhir Singh has failed to prove the said documents as per applicable rules of evidence despite specific suggestion on the part of management no. 1 regarding the said documents being forged and fabricated.
60. 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:
Kapil Kumar Sharma v. BSES & Ors.LIR No. 3266/2017 Award dated 06.07.2024 Page 26 of 32
"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 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 Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 27 of 32employer 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 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 :
Kapil Kumar Sharma v. BSES & Ors.LIR No. 3266/2017 Award dated 06.07.2024 Page 28 of 32
(2014) 2 SCC (L&S) 804] , as follows : (SCC pp. 437-38, para 65) "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]."
61. In view of the aforesaid discussion, in my considered opinion, the workman has failed to discharge his onus to prove the existence of any employer-employee relationship between the management no. 1 and himself. Issue no. (i) is thus decided against the workman.
Issue no. (ii): Whether the workman mentioned at Sl.No. 1 to 15 & 22 left the job with management no. 2 on their own and there had been no relationship of employer and employee between the other workmen and management no. 2? OPM2
62. It is significant to note that common issues were settled by Ld. Predecessor of this Court vide order dated 30.07.2013 qua the claims Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 29 of 32of all the employees mentioned in Annexures A to C of the reference order dated 29.04.2011 before segregation of the cases and the aforesaid issue is not relevant to the claim of the present workman, whose name finds mentioned in Annexure B to the reference dated 29.04.2011, whereas, the issue no. (ii) is settled qua the claims of workmen mentioned in Annexure-A. The aforesaid issue is thus deleted in the present case.
Issue no. (iii): Whether 82 workmen in the present claim were employed by management no. 3 on contractual basis and 32 workmen joined the services of management no. 3 upon an increment while the rest workmen failed to join the job despite the offer by management no. 3?OPM3
63. Onus to prove the aforesaid issue was upon management no. 3, however, management no. 3 has failed to lead any evidence in the present case. Be that as it may, the aforesaid issue is not relevant for adjudication of the reference dated 29.04.2011 and hence, the same is hereby deleted.
Issue no. (iv): Whether the workman ceased to be an employee of management no. 4 after 15.02.2011 after the expiry of contract between management no. 4 and management no. 1 and as such there existed no relationship of employer and employee between the parties? OPM4
64. It is significant to note that common issues were settled by Ld. Predecessor of this Court vide order dated 30.07.2013 qua the claims of all the employees mentioned in Annexures A to C of the reference order dated 29.04.2011 before segregation of the cases and the aforesaid issue is not relevant to the claim of the present workman, whose name finds mentioned in Annexure B to the reference dated 29.04.2011, whereas, the issue no. (iv) is settled qua the claims of workmen mentioned in Annexure-C. The aforesaid issue is thus deleted in the present case.
Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 30 of 32Issue no. (v): Whether the services of the workmen have been illegally and/or unjustifiably terminated and if yes, by which of the managements?OPW.
65. Onus to prove the aforesaid issue was upon the workman. It has already been observed hereinabove that the claim of the workman in the present case is that he was an employee of management no. 1 and it was for his exploitation that his name was being shown as an employee of different contractors at different points of time. It is further his case that it was due to the objection on his part to the show of his name by management no. 1 as an employee of managements no. 2 to 4 that the management no. 1, in connivance with the managements no. 2 to 4, has illegally terminated his services w.e.f. 15.02.2011.
66. It has also been observed hereinabove that the workman has failed to prove that he was either an employee of management no. 1 or that he was working under direct control and supervision of management no. 1. Under the aforesaid circumstances, there was no occasion for the management no. 1 to terminate his services much less illegally. From the material available on record, it is apparent that the services of the workman, if at all, have been terminated by management no. 3. It is submitted by Ld. AR for workman that since management no. 3 has failed to lead any evidence in support of its pleadings, the termination of services of the workman by management no. 3 is liable to be termed as illegal. However, the aforesaid submission of Ld. AR for workman is beyond the pleadings as well as evidence of workman who has alleged illegal termination of his services by management no. 1.
67. Issue no. (v) is thus decided against the workman.
Issue no. (vi): Relief.
68. In view of my findings on issues no. (i) and (v), claim of the Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 31 of 32workman is liable to be dismissed and is hereby dismissed. The reference dated 29.04.2011 is answered in the following terms:-
"The claimant Sh. Kapil Kumar Sharma S/o Sh. Jagdish Sharma has failed to prove the existence of any employee- employer relationship between him and management no. 1, whereas it is not even his case that he had ever been employee of management no. 3. He has also failed to prove that his services were illegally and/or unjustifiably terminated by management no. 1 in connivance with other managements and hence he is not entitled to any relief".
69. Ordered accordingly.
70. 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 06th day of July, 2024. by ARUN KUMAR KUMAR GARG This award consists of 32 number of signed pages. Date: 2024.07.06 GARG 10:21:00 +05'30' (ARUN KUMAR GARG) Presiding Officer Labour Court-III Rouse Avenue Court, New Delhi Kapil Kumar Sharma v. BSES & Ors.
LIR No. 3266/2017 Award dated 06.07.2024 Page 32 of 32