Gujarat High Court
Gujarat Energy Transmission ... vs Akhil Gujarat General Mazdoor Sangh on 22 April, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1549 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 6262 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1549 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT ENERGY TRANSMISSION CORPORATION LIMITED
Versus
AKHIL GUJARAT GENERAL MAZDOOR SANGH & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MR AK CLERK(235) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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NEUTRAL CITATION
C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024
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Date : 22/04/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal, under Clause 15 of the Letters Patent, has been filed by the Gujarat Energy Transmission Corporation Limited (GETCO), on being aggrieved by the oral order dated 28.06.2022 passed by the learned Single Judge dismissing the petition filed by the Corporation and in turn confirming the award dated 19.10.2016 passed by the Labour Court, Anand in Reference (Demand) No. 1 of 2012.
2. Briefly stated, the facts in the petition indicate that the petitioner - Gujarat Energy Transmission Corporation Ltd. had engaged workmen according to its perception on security contracts. These security workers engaged by the appellant raised an industrial dispute inter alia stating that they were the direct employees of the Corporation and the contractor through which they had Page 2 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined been engaged was really a contract which was sham and bogus and therefore they should be treated as employees of the Corporation. The Labour Court vide its award dated 19.10.2016 allowed the reference declaring that the workmen of the respondent union were the workmen of the Corporation and the Corporation was therefore directed to pay regular wages as if they were the employees of the Corporation. Aggrieved by the award which held thus, the petition was filed. Facing dismissal, the present appeal has been filed.
3. Mr. Dipak Dave, learned counsel for the appellant would submit that the employees - workmen engaged by the contractor could not have been termed as the workmen of the Corporation as they were not recruited through a regular procedure i.e. issuance of an advertisement and a competitive examination and/or personal interview. He would submit that the Tribunal committed an error when in fact one of its contractors Shri Prajapati Chandrakant Manibhai was a Supervisor Page 3 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined appointed by the contractor and for the Tribunal to hold that he was a workman of the Corporation who was infact supervising the work is illegal.
3.1 Mr. Dave raising a preliminary contention with regard to the maintainability of the reference as also with regard to the existence of an industrial dispute, would submit that in the form the strength of the employees was shown as 50 whereas in fact the strength is 13,000. The union was not a recognised union and therefore neither there was an industrial dispute nor the union having its membership could have a right to raise an industrial dispute.
3.2 Mr. Dave, inviting the court's attention to the terms of reference, would submit that reading the terms would indicate that the question that was framed by the Labour Court was whether the workmen shown in the schedule who are so called workmen of the contractor can be treated as workmen of GETCO. The reference declared Page 4 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined that the contract was sham and bogus. He would therefore submit that the Labour Court went beyond the reference. In support of his submissions, he would rely on the decision in the cases of Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. [(1979) 3 SCC 762, paras-10, 15, 16)] and F T & R Co of India (P) Ltd. v. Its Workmen [(1981) 3 SCC 541, para-9].
3.3 Mr. Dave would further submit that the reasons given by the Labour court are totally perverse. He submitted that the Labour Court proceeded on the basis that it was the responsibility of the employer to prove that the contract is not sham and bogus. The approach of the Labour Court was therefore entirely wrong. The reasons for drawing adverse inference on the ground that the appellant had not been able to produce documentary evidence to show that the contract was not sham and bogus therefore was illegal. He would submit that except the testimony of one witness Shri Hemraj Rabari, who was examined by the respondent union, no documentary Page 5 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined evidence was produced by the union to show that there was employer employee relationship; that the payment of wages was made by the employer; that there was supervision and control over the employees by GETCO and that the employees were carried out core activities.
3.4 Taking us through the 8th indicia that the Labour Court had considered, Mr. Dave would submit that the cross examination of Shri Rabari clearly revealed that the employees had signed the form for getting appointment with the contractor M/s. Alert Allied Security Services.
There was no evidence to substantiate the case that it was the Deputy Executive Engineer who had been the appointing authority. Reading the cross examination of the Shri Rabari, Mr. Dave would submit that even as per his cross examination, when Chandrakantbhai was the supervisor and he was allotting work to the employees.
The witness had also admitted that the bonus was being paid by the contractor. Mr. Dave further submitted that the P.F slip clearly showed that the employer in fact was Page 6 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined the contractor. This evidence was overlooked by the Labour Court and therefore in his submission the award must be set aside.
3.5 Referring to the testimony of witness of GETCO one Shri Bhupendra Gandabhai Patle, Mr. Dave would submit that it had clearly come out from the evidence of the witness that the contract was engaged after floating a tender and there was therefore total misreading of the evidence. He would submit that the following documents namely the settlement executed by the contractor with the employees with regard to the dispute of P.F., the P.F. slip, the identity card, the register which had the signatures were not considered by the Labour Court which were clearly indicative of the fact that in fact there was a genuine contract. He would submit that the findings of the Labour Court are clearly perverse on the ground that no documents have been produced by the workmen to show that the contract is sham and bogus.
Shifting of the onus of proof on the employer was clearly Page 7 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined misconceived.
3.6 Mr. Dave would submit that the documents proved and produced by the employer clearly indicated that the tender was issued after a regular advertisement. Ex. 36, according to Mr. Dave, is a letter written to the Supervisor drawing attention as to how the security of the premises is to be taken care and this letter was clearly a pointer to the fact that the security service was carried out through a contractor. He would submit that all the tests applied by the Labour Court were erroneous.
It cannot be said that the core activity of the company was providing security services. He would submit that at best what could have been done is and what was considered by the Labour Court was for declaring the contract to be contrary to Section 10 and prohibit contract labour.
3.7 Relying on the decision in the case of Bharat Heavy Electricals Ltd. vs. Mahendra Prasad Jakhmola [(2019) 13 SCC 82], he would submit that the decision Page 8 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined would indicate that the findings of the Labour Court that the contract is sham and bogus are perverse. Relying on the decision in the case of Balwant Rai Saluja vs. Air India Limited [(2014) 9 SCC 407 paras 35, 36, 50- 61], he would submit that it was very clearly held in the case that there were two prominent tests (1) the payment of wages by the contractor and (2) supervision and control by the contractor which would make the case of the employee vulnerable. Relying on the decision in the case of Steel Authority of India vs. Union of India [(2006) 12 SCC 233] and relying on paragraphs no. 13, 14,18 and 22-28 thereof, he would submit that it was an admitted fact that there was no employer employee relationship and that it was clearly erroneous to hold that the contract was sham and bogus. He would submit that GETCO being a government company would pay salaries through cheque or RTGS in the bank account of the employees and no such evidence was produced.
3.8 Reliance was also placed on the decision in the case Page 9 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined of International Airport Authority of India vs. International Air Cargo Workers Union [(2009) 13 SCC 374], Workmen Of Nilgiri Co-op-marketing, Society Limited Versus State Of Tamil Nadu [(2004) 3 SCC 514], General Manager (Osd), Bengal Nagpur Cotton Mills Rajnandgaon Versus Bharat Lal [(2011) 1 SCC 635], State Of Uttarakhand Versus Sureshwati [AIR 2021 SC 923] and a decision of this Court rendered in Letters Patent Appeal No. 771 of 2018.
4. Mr. Abhilash Clerk, learned counsel appearing for the Union would submit that it has been brought on record that the concerned workmen had been working with the appellant since many years and though the contracts had changed, the workmen remained the same.
Even when there was no contract for a period of one year, the workmen continued to perform their duties. Mr. Clerk would submit that the Labour Court had passed a reasoned order which had been confirmed by the learned Page 10 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined Single Judge in exercise of powers under Article 226 of the Constitution of India and this court in appeal therefore should be slow in upsetting the orders passed which are under challenge.
4.1 Mr. Clerk would submit that the Labour Court had kept in mind the principles laid down by this court in the case of Steel Authority of India Ltd. vs. Gujarat Mazdoor Panchayat and Anr. reported in 2004 (1) GLR 729. Findings of fact were recorded based on evidence and therefore in exercise of powers vested in the High Court, this court need not interfere with the award. Therefore the learned Single Judge was right in confirming the award.
4.2 Mr. Clerk would submit that it is evident that the concerned workmen were natives of nearby villages; their lands were acquired for the purposes of the establishment of the sub-station; local persons were employed by the GEB and after some time they were Page 11 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined converted into contract labourers; issues were framed by the Labour Court and the Labour Court recorded the findings that the contract system was not genuine but was sham and bogus. The findings of the Labour court therefore are just and proper.
5. Having considered the submissions made by the learned counsel for the respective parties, we have perused the award of the Labour court and also gone through the evidence on record i.e. of Shri Hemraj Rabari who was examined before the Labour Court at Ex. 25 and that of Shri Bhupendra Gandabhai Patle at Ex. 61. We have noted the deposition of Shri Rabari who in his evidence has stated that along with him there were 13 employees engaged as security workmen. That they were so engaged at the station of the Gujarat Electricity Board.
That he was engaged with the Gujarat Electricity Board in the year 1993. In the deposition, he would submit that it was the deputy Executive Engineer and the Executive Engineer, Construction who had engaged and appointed Page 12 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined him at the GEB sub-station. A regular interview was held, a medical checkup was undertaken, he had undergone a physical test and it was only thereafter that he was engaged and appointed with the Gujarat Electricity Board. Though no appointment order was given, he was thereafter shown to be under the head of the Security Services Contractor. Initially when he joined as a Security Officer, his pay was being paid through the GEB voucher and thereafter through the contractor who maintained a register. That he was working at the transfer sub-station for a period of 12 to 13 years, the nature of work being to carry out services of watchman.
Perusal of the testimony of this witness would further indicate that initially their pay was being paid after obtaining their signatures on a muster but then their salaries was being deposited directly in their bank account. Their services were engaged at the company's circle offices, head offices, zonal offices, head offices of the power station etc. Page 13 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined 5.1 In the cross examination, this witness has stated that it is true that there was a supervisor namely Chandrakant and that he would assign duties but he denied the suggestion that the pay was being paid through a contractor namely Alert Allied Company. He would submit that his Provident Fund deduction was made by the employer GEB. He would admit that he had in his deposition stated that the contract was with one Gujarat Personnel Security Services Ltd. but he would submit that the pay was being done by the Deputy Executive Engineer. Assailing the cross examination, Mr. Dave's submission was that what was in fact proved in the cross examination was that the salaries were being paid in supervision or in presence of the Deputy Executive Engineer which was in fact being paid by the contractor.
5.2 We have also gone through the evidence and the testimony of Shri Bhupendra Gandabhai Patle, witness of the employer. Though in his testimony he has stated that for the purposes of a security contract, tenders were Page 14 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined floated and the contractors engaged through such tenders were essentially the employers who would then engage the security workmen. He admitted that the contractors kept changing, however, the workmen remained the same since the year 1995. Perusal of the cross examination of Shri Patle would indicate that he had admitted that for the purposes of being engaged as security workmen, they had been interviewed and that their selection had been done through a regular procedure.
6. Perusal of the award would therefore indicate that discussing the evidence on admitted facts on record, the Labour Court found that the work i.e. the security work was of a permanent nature. In the background of this when the documentary evidence is considered, the Labour Court found that the appellant had not produced any document to suggest that the security workers were appointed through contractors or that the contract system was in force. No licences issued to the Page 15 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined contractors from the very beginning was produced.
Correspondence to indicate that the contractors were changed was also not produced. The Labour Court on perusal of the evidence and the pleadings in the written statement found that the Alert Allied Services - the contractor was appointed from 01.01.2008 to 30.11.2010 whereas the documents which were produced at Ex. 26/1 to 26/6 were of the year 2014. The Labour Court therefore found inconsistencies in the versions of the appellant and that of the contractor. If the contract was genuine and when the testimony of Shri Bhupendra Patle is perused, the case of the Corporation was that the contractors were appointed through a regular tender process. No documents were produced before the Labour Court nor were the contracts produced to indicate that a contract was entered into through a process of tendering and therefore the plea of the workmen that the contract was sham and bogus was accepted.
7. On the judgements cited by the learned advocate for Page 16 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined the appellant that the Labour Court could not have drawn adverse inference and the judgements that were cited by learned counsel for the appellant to suggest that no adverse inference could be drawn, in our opinion the Labour Court did not commit any error in drawing adverse inference. The identity card produced by a workmen Shri Hemraj Rabari at Ex. 38-41 that the contractors were different, the Labour Court observed that when the reference was filed, they did not join the contractor the first party. The contractors kept changing and the workmen did not know the succeeding contractors. If it was the case of the employer that the appointment of the workmen was not through the company or that the contractors were engaged after undertaking a tendering process no such documents or contracts were produced to suggest and prove their case.
It will be in the fitness of things to reproduce the relevant findings of the Labour Court:
"Second party have produced Identity Cards of one workman Mr. Hemraj B. Rabari vide Exh. 38 to 41, these all cards are year 1995 to 2008 Page 17 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined but the name of security contractors are different. When the second party have filed this Case they have not joined the first party No 3 as security contractor and after the file of this Case they Came to know that in contemporary there has contract given to first party No.3 Siddhi Security Service, facts it self shows rather self explanatory that workmen concerned did not know who was actually having security contract with first party No.2, not only that first party No.3 have not produced any oral or documentary evidence regarding existence of contract, hence considering the facts also there was only paper arranged contract was existence in first party No.2.
The first party No.2 have not produced any framed rules regarding appointment of workmen in company nor produced any copy of tender regarding security service from the very beginning, to prove time period of contracted security service, under such facts adverse inference may be also drawn against first party No.2 In examination of Chief workman Mr. Hemraj Babubhai Rabari says in para 3 that he was appointed by first party NO.2 in July 1993 as Watchman then after two or Three months later, Rameshbhai Dahyabhai Parmar was appointed and after then another workmen was appointed by GEB, when there was structure was going on for built up Sub-station, in 1989 Somabhai L. Parmar was also appointed by GEB as Watchman and he was retired on some 3 to 4 years ago. Now looking to the cross- examination of this witness, there is nothing Page 18 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined asked by the First party GEB to disprove it. Not only that but in para 4 and 5 of chief-
examination there is also submitted who was the officials in administration, erstwhile address and venue of the company and interview procedure held by GEB etc. but it has also not disproved in cross-examination also and remain silent regarding actual relationship between workmen and owner. In cross- examination, it is proved that the actual salary was giving by first party No.2; hence it is reason to believe that contract system is only paper arranged by first party No.2.
The First Party No.1 has produced application Forms vide Exh. 30 to 55 of concerned workmen to prove that they are real workmen of him and appointed by due procedure, this documents are also not reliable and trustworthy as looking to the nature of document a person who is applying for the post of security man cannot wear uniform before appoint as security man, in said application forms, all the applicant workmen have seems wear same uniform; writing in forms are also same and seems written by same person, said documents are produced after the second party has submitted his examination-in-chief hence these documents are also not reliable. As consequential issue raised by me for deciding this reference Case it should be prove on the record that contract system in first party No.2 is genuine and required system according to Labour Laws and its Rules."Page 19 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024
NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined 7.1 Perusal of the award of the Labour Court would indicate that in light of the decision in the case of Steel Authority of India (supra), the Labour Court considered the factors and in light of the principles set out held thus:
"In light of the above principles, we may observe what established and proved in this Case as following tabular form :
1 Activities / business of Activity/Business : To transmit the principal employer Electricity, Principal Employer is : Company/Gov.(GEB/GETCO) 2 genuine need or Security work in entire requirement of engaging premises, it is essential contract labour requirement: admitted facts as per witness of first party No.2 Exh.61 3 length of continuous Approx 15 to 18 years :
and uninterrupted service proved vide Exh. 38 to 41 of workmen 4 nature of work done Perennial in Nature, it is by workmen, i.e. whether admitted fact by First Party No.2 the work is perennial in in Crossexamination Exh. 61 nature or intermittent 5 who has, in fact, supplied Workmen concerned were the labour force to the appointed by First Party No.2 principal employer, GETCO/GEB then they merged meaning thereby, in socalled contract system, it is whether the services of proved by witness Mr. Hemraj the workmen were made Rabari Vide Exh. 25, is not available to the principal disproved by any first party.
employer by the labour contractor after making recruitment 6 extent of supervision and Supervision and control over control of the workmen by workmen by principal employer, principal employer it is proved by document Exh.
Page 20 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined 36 as well oral evidence by witness Mr. Hemraj Rabari Exh.25 7 whether the workers do the Doing work as watchman or labour work to produce security guard, first party No.2 goods or service for does not manufacture any business of the principal article but it is power station. employer 8 whether the provisions of No single documents has been the Act relating to produce by any First party registration and licence regarding registration certificate etc. are complied with or license of Contract/s.
7.2 In light of these evidences which are on record, if the order of the learned Single Judge is perused, the learned Single Judge has held thus:
"5.1 It appears from the record that the petitioner- corporation has made sham, camouflage and mere paper arranged agreement with Contractor. This dispute is raised based on the principle laid down by the Various High Courts and the Apex Court. The petitioner-corporation is registered under the Companies Act-1956 and exclusively run by Government of Gujarat. The said company is running without public fund and turn from the name of Gujarat Vidhut Board functioning generation of electricity and transit it. The dispute has raised by the security workers of the unit situated at: Kasor, Ta. Sojitra. The workman Mr.Chandrakantbhai M. Prajapati is the supervisor and rest of the workmen are working as guard since the time Mentioned in schedule annexed with Statement of Claim. It is submitted that by management, supervisor is paying 3500/- per month while rest of the workmen are paying 2700/- per month and cost of uniform being deducted from Salary. It also appears from the record that all the workmen were Page 21 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined employed by responsible officer of Gujarat Vidhut Board, who is petitioner-corporation and than they are treats as workmen of Contractors as other private Companies appoint such workmen by contractors though said workmen are working same as regular and permanent workmen of management. It also appears from the record that management has created contract system only on paper arrangement, sham and camouflage as workmen are doing work to supervise the building from theft and observe discipline which is in permanent nature. It also appears from the record that in fact employment work is doing by only principal management and all the formalities like physical test, interview, selection procedure, medical test, distribution of work IT, were also done by principal employer - petitioner corporation and selected workmen's names shows in muster roll in which employees are shown as workmen of contractor. In fact workmen are even not know who is current contractor and under whom contractor they are working. The contractor and workmen are not working under the direction of Contractor and they are obeying the order of officers of petitioner-corporation, if any workman wants to leave, they have apply to petitionercorporation and contractor does not even comes to the workplace also. During the service tenure, workmen have work under the following contractors : (1) Gujarat Personal Security Service (2) Jay Security Service (3) Express Security Service (4) Gujarat Security Service (5) National Security Service (6) Siddhi Security Service (7) Reliable Investigation and Security Service (8) Alert Allied Security Service. These all are contractors are came and gone, but all the workmen have served in permanent nature and having intact service.
Interestingly these all contractors have not selected them, not given any appointment letter or removal orders and even workmen are not know who are running these contracts and when contracts ended. It appears from the record that even some times workmen have served between the time when one contract ends and another came into force. Whenever petitioner-
Page 22 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined corporation raised any complaint against some of the workmen, he used only letter head of the such so called contractor. In February 2004, contractor had decide to employ Ex-army men and also employed such type of workmen, and these workmen was decided to be removed from their service, but these workmen probed by hunger strike and at that time, by mediation of local MLA, petitioner-corporation has withdrawn his decision and workmen were remained in service by so called assign new Contract to the Siddhi Labour and Security Service and workmen were included in said contractor. The workmen have to work in Three shift that First is Morning 6-00 o'clock to Noon 2-00 o'clock, Second is Noon 2-00 o'clock to Night 10-00 o'clock and Third is Night 10-00 o'clock to Morning 6-00 o'clock, these timings have also decided by the petitioner-corporation and workmen have to perform their duty at Security point situated at (1) Main Gate (2) Residential Colony (3) 220 K.V. Yard and (4) 440 K.V. Yard in one security guard and one is their security supervisor. General shift is Morning 10-00 o'clock to Evening 6-00 o'clock and duty of workmen does decide by an officer of the petitioner-corporation. It appears from the record that whoever enrolled as security guard with contractor are getting wages as per contract including grade pay, increments, dearness allowance, leave with wages, other allowances, and doing secure job while these workmen are doing} same job are getting only Rs. 2700/- per month.
6. From the reply given by the petitioner-corporation before the Labour Court, it appears that Gujarat government has allotted land at Kasor for built up 400 K.V. Sub-station and he has paid Rs.17,49,605/- on 28.04.1992 to the Government. After the issuance the order from Collector, Khaira District, petitioner- corporation had started the construction and for that purpose there was need for security staff, therefore, tender was issued. The contractor whose tender was passed by petitionercorporation were employed the workmen, got licence from concerned authority and Page 23 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined also supervise themselves and wages were also paid by that contractor. The petitioner-corporation has given contract to the Contractor-Alert Allied Service from 01.01.2008 to 30.11.2010 and said contractor did not pay the salary to his workmen. When contract has given to ContractorAlert Allied Service, he has appointed the said workmen by getting application from respective workmen.
7. With regard to issue of the respondent-union not being a registered union and not having proper representation of the workmen of the petitioner- corporation, it would be appropriate to refer to a unreported decision of the Apex Court in case of Newspapers, Limited, Allahabad Vs. State of Industrial Tribunal, Uttar Pradesh & Ors. passed in Civil Appeal No.348 of 1959 dated 04.05.1960, wherein while examining the contention raised that the association which sponsored the case of the workmen was a unregistered body and that made the reference invalid. The Apex Court held that it is not necessary that a registered body should sponsor a workmen's case to make it an industrial dispute. Once it is shown that a body of workmen either acting through their union or otherwise had sponsored the workmen's case, it becomes an industrial dispute. Moreover, from the record, it appears that the written reply filed by the petitioner-corporation did not raise this issue to challenge the reference on the ground of the respondent-union not being registered or not representing the majority of the workmen. It is evident from the affidavit-in-rejoinder filed on behalf of the petitioner-corporation (Page No.149 - Para 5) that for the first time, the petitioner-corporation has challenged the locus of the respondent-union.
8. The Apex Court in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha & Ors. reported in 1995 (5) SCC 27 in Paragraph No.33 has held as under:-
Page 24 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined "33. These decisions in unambiguous terms lay down that after the coming into operation of the Act, the authority to abolish the contract labour is vested exclusively in the appropriate Government which has to take its decision in the matter in accordance with the provisions of Section 10 of the Act. This conclusion has been arrived at in these decisions on the interpretation of Section 10 of the Act. However, it has to be remembered that the authority to abolish the contract labour under Section 10 of the Act comes into play only where there exists a genuine contract. In other words, if there is no genuine contract and the so called contract is sham or a camouflage to hide the reality, the said provisions are inapplicable.
When, in such circumstances, the concerned workmen raise an industrial dispute for relief that they should be deemed to be the employees of the principal employer, the Court or the industrial adjudicator will have jurisdiction to entertain the dispute and grant the necessary relief. In this connection, we may refer to the following decision of this Court which were also relied upon by the counsel for the workmen."
And ultimately concluded in Paragraph No.53 and relevant for the purpose of this case being Paragraph No.53(ii), the said paragraph quoted herein below:-
"53 [ii] if the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employess of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Section 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the Page 25 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused thedispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Section 2 (k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under Section 10 of the Act."
9. Again, the Apex Court in case of Bharat Heavy Electricals Ltd. Vs. State of U.P. & Ors. reported in 2003 (6) SCC 528 taking note of the practice of making of artificial arrangements, who engaged the workmen through some intermediary observed in the facts of the case in Paragraph Nos.10 & 11. The said paragraphs read as under:-
"10. Looking to what is stated in paras extracted above, it is clear that where workman-labour is engaged to produce goods or services and these goods or services are for the business of another, the other is employer. The work of the respondentsworkmen is not totally disassociated in fact between them and the appellant to say that they were not employees of the appellant judged by what is stated in para 7 of the same judgment in the following words:-
"7. Of course, if there is total dissociation in Page 26 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined fact between the disowning Management and the aggrieved workmen, the employment is, in substance and in real-life terms, by another. The Management's adventitious connections cannot ripen into real employment."
11. The definition of 'employer' given in Section 2(i)(iv) of the Act is an inclusive definition. If the respondents-workmen as a matter of fact were employed with the appellant to work in their premises and which fact is found established after removing the mask or facade of make-believe employment under the contractor, the appellant cannot escape its liability."
10. At the outset, it would be appropriate to mention that the powers of this Court under Articles 226 and 227 of the Constitution of India to interfere with the findings of the Industrial Tribunal / Labour Court is restricted as is held by the Apex Court in case of Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union & Anr. reported in 2000 (4) SCC 245, wherein in Paragraph No.8, the Apex Court while raising the very question whether in view of categorical findings of fact arrived at by the Tribunal, can a single judge while exercising jurisdiction under Article 226 of the Constitution of India, could have reappreciate the evidence and come to a different conclusion. The said Paragraph No.8 reads as under:-
"8. The question is whether in view of such categorical findings of fact arrived at by the Tribunal, the learned Single Judge exercising jurisdiction under Article 226 of the Constitution of India could re-appreciate the evidence and come to a different conclusion. We have already pointed out that the learned single Judge had erred in appreciating certain documents and the evidence in the case. We are clearly of the opinion that the learned Single Judge had no Page 27 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined material to characterise the judgment of the Tribunal as perverse. We will once again refer to certain important matters which would go a long way to decide the matter. The inference drawn from Ex.M1 that it was the Union, who wanted the canteen is far from truth. The subsequent evidence has got to be looked into on this aspect of the case. In Ex.M4, dated 23.4.1988, the Union has informed the bank about the new canteen promoters for the record of the bank. The inference drawn by the learned Judge from Ex.M5 that the canteen was not exclusive for the bank is based on a misconception. The evidence of MW1 clearly shows that the canteen is meant only for the bank. His evidence is as follows:
"... The canteen is meant only for the staff of the bank the canteen will remain only for closed on bank holidays..."
The observation that the bank was running the canteen to retain good relationship between the union and the management is not appropriate and on the other hand, it only shows that the bank was implicitly bound to maintain the canteen. The learned Single Judge has not given due weight to the two principles enunciated in the LIC case and undisturbed by the RBI case. We have already quoted those principles. 9. One other significant fact which has escaped the attention of the learned Single Judge is the letter written by the Central Office of the bank when the promoters expressed their inability to run the canteen with effect from 26.4.90. Says the management as follows:
'Member of staff are advised that the canteen will function in our canteen block with effect from 21.10.1992. The contractors will run the canteen with minimum staff for a week on a trial basis to overcome the difficulties if any. The canteen will Page 28 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined run normally after a week or so....' The bank further says that the canteen is for the welfare of the staff and directs as follows:
'All members are requested to avail this facility and refrain from going out for coffee and tea. Since the canteen has started functioning the Department Heads should inform all the staff members to restrict their lunch time to half an hour between 12.30 and 3.00 p.m. and the staff may be permitted to go for lunch in fixed time to avoid heavy rush at the canteen...' The above passage quoted from the letter of the Central Office of the Bank amply establishes that the bank had an obligation to run the canteen and in fact, was running the canteen, through contractors, even though the promoters had withdrawn their services. Actually, it appears that the promoters were desirous of forming a co- operative society and it did not fructify. In this view of the matter, it is clear that as in the LIC case, the bank had been running the canteen by one or other of the agency."
11. In yet another judgment, the Apex Court in case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 (3) SCC 192 has laid down the parameters to exercise the jurisdiction under Articles 226 and 227 of the constitution of India. The Paragraph No.13 of the said judgment reads as under:-
"13. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-7- 2002 in Section 115 of the Page 29 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.Page 30 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024
NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long- drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or Page 31 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
Page 32 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined
12. In the opinion of the Court, the numbers of members will not be a deciding factor to sponsor an industrial dispute on behalf of the workmen. The case of the petitioner that the respondent-union is an unregistered union and the industrial dispute is not maintainable at his behest ought to have taken at the first point of time and as is held by the Apex Court in case of Harjinder Singh (supra), the Court is not inclined to examine the issue at a belated stage.
13. The petitioner had an occasion to raise such issue even at the stage of reference being made by the Conciliation Officer. The petitioner not having challenge such reference at the relevant time is deemed to have acquiesced. Moreover, thereafter, the petitioner has fully participated in the industrial dispute without raising such contention, and therefore, such contention, in the opinion of the Court, is an afterthought, which will not render the order of the Labour Court vulnerable. Yet in another decision of the Apex Court in case of Workmen of Rohtak General Transport Company vs. Rohtak General Transport Company passed in Civil Appeal No.349 of 1961 dated 27.02.1962 explaining an industrial dispute what is dispute between some workmen and their employer. While examining the facts, the Court held that, if the respondent has raised an issue that even a minority workmen has not espoused the cause, it would have been open for the appellants therein to lead the evidence to show that the union which served the demand notice was entitled to act on behalf of the workmen and as in the facts of that case, that cause was not adopted, as the issue before the Labour Court was different, and therefore, the cause of the two workmen not being espoused by the majority of the workmen was not held to be a ground to refuse the reference. Similarly, when the issue was not before the Labour Court, there was no scope for either side to establish this fact.
14. The contention raised with regard to the Labour Page 33 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined Court having exceeded its jurisdiction, cannot be accepted considering the terms of reference itself, which categorically provided for that whether a workman of contractor be treated as a permanent workman of the petitioner-corporation and it is in this regard, the evidence appears to have been led by both the sides, which consisted of oral evidence of the workmen, representative of the petitioner-corporation, the documentary evidence with regard to the attendance register etc., which would indicate the status of the respondent-workman with the petitioner. The Labour Court has correctly appreciated the evidence with regard to the connection between the petitioner and the respondent-workmen."
8. What is produced by the learned counsel for the appellant in terms of payslips or the settlement entered into between the contractor and the workmen are documents which have to be tested and proved through witnesses. That is clearly not done before the Labour Court which was the competent court where the case of the appellant could have been proved. It is in light of these flaws that the Labour Court had come to the conclusion that neither copies of the contract were produced nor anything to suggest that the contract was genuine or that the mode of appointment of the workers of the respondent union were not through the actual employer i.e. the Gujarat Electricity Transmission Page 34 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined Corporation.
9. There is no dispute to the propositions in light of the decisions relied upon by the learned counsel for the appellant on the tests that need to be satisfied in order to consider whether the contract is sham and bogus. But the fact of the situation is that no evidence to suggest otherwise that the contract was not sham and bogus was produced and therefore the Labour Court had rightly drawn adverse inference against the appellant when from the testimony of the witness Shri Hemraj Rabari it had prima facie come on record that the engagement of such workmen was in fact through the principal employer -
GETCO. The Labour Court has reproduced the relevant paragraphs of the decision in the case of Steel Authority of India Ltd. (supra) and observed that if the contract is sham or not genuine, the workmen of the so called contract can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming appropriate service conditions. When Page 35 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined such a dispute is raised, it is not a dispute for abolition of the labour contract and therefore the provisions of Section 10 will not bar either the raising of the adjudication of the dispute. This therefore would also answer the submission of Shri Dipak Dave, learned counsel for the appellant in context of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970.
Having found the 8 parameters being satisfied by the Labour Court, the Labour Court in our opinion did not commit any error of jurisdiction nor can the award of the Labour Court be termed as perverse so as to be upset. It will be in the fitness of things to reproduce the relevant paragraphs of the decision in the case of Steel Authority of India vs. Gujarat Mazdoor Panchayat & Anr.
(supra):
"17. The position of law, which emerges from the reported decisions of the Supreme Court, is that workmen working under a contractor are entitled to raise a demand that they should be declared as workmen of the principal employer. It is always open to the workmen concerned to place materials before the industrial adjudicator to show that the contract between the principal employer and the contract labourer is sham or not genuine, and claim declaration Page 36 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined that they were always the employees of the principal employer and are entitled to appropriate service conditions. When such a dispute is raised, it is not a dispute for abolition of labour contract. Hence, the provisions of Section 10 of the Act will not bar either the raising, or the adjudication, of such a dispute. When such a dispute is raised, industrial adjudicator has to decide whether the contract is sham or genuine. It is only if adjudicator comes to a conclusion that the contract is sham, then he will have jurisdiction to adjudicate the dispute. If however, he comes to a conclusion that the contract is genuine, he will have to dismiss the reference and may refer the workmen to the appropriate Government for abolition of contract labour under Section 10 of the Act. In the light of abovereferred to principles of law, the dispute raised in the petition will have to be considered by this Court. However, before resolving the dispute raised in the petition, it would be relevant to advert to oral evidence adduced by the parties before the Tribunal.
21. The factors which may establish that a contract between the principal employer and the labour contractor is a mere paper arrangement or an eye wash or a camouflage or a ruse or a facade or a name lender are; (i) activities / business of the principal employer,
(ii) genuine need or requirement of engaging contract labour, (iii) length of continuous and uninterrupted service of workmen, (iv) nature of work done by workmen, i.e. whether the work is perennial in nature or intermittent, (v) who has, in fact, supplied the labour force to the principal employer, meaning thereby, whether the services of the workmen were made available to the principal employer by the labour contractor after making recruitment, (vi) extent of supervision and control of the workmen by principal employer, (vii) whether the workers do the labour work to produce goods or service for business of the principal employer, and (viii) whether the provisions of the Act relating to registration and licence etc. are complied with. The plea that the industrial adjudicator Page 37 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined cannot take into consideration the factors mentioned in Clauses (a) to (d) of Section 10(2) of the Act to arrive at the finding as to whether the labour contracts are genuine or not cannot be accepted in view of the principles laid down in Gujarat Electricity Board v.
Hind Mazdoor Sabha (supra) at page 67, paragraph 59.
24. As far as length of continuous and uninterrupted services of the employees working in the stockyard is concerned, it is established beyond doubt that the workers are working since years and some of the workers are rendering services since more than 25 years because evidence of the worker examined on behalf of the respondent No.1 would indicate that he himself had put in service of 18 years when his evidence was recorded on November 13, 1995 and that there were other workers who were working in the stockyard before he joined the service. The fact that the workers concerned are employed in the stockyard since years is not in dispute and is almost admitted. In order to disprove the claim of the workers that they are employed in the stockyard since years, no evidence worth the name could be adduced by SAIL nor any particulars could be furnished indicating as to which worker was employed by whom and when. Thus, the fact that the workers concerned were/are employed in the stockyard since years stands well established.
26. As far as engagement of labourers for doing the work of unloading materials, sorting them out, shifting, etc. is concerned, no evidence is adduced by the writ petitioner to establish that the labourers were engaged by the labour contractors such as, Mangadhram, Nebrus, Intercity, Nitex, Western Retainers, Durga Crane Company, Shree Chand Rolling Mills, Bhatia Company, R.C.Gupta Company and Bardhan & Co.. If the labourers had been engaged by the contractors, the labourers would have been required to leave the job as well as place of work, i.e. stockyard, and would have joined another place of work as and when directed by their master/masters. The terms and conditions of Page 38 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined service of labourers stipulated by contractors and accepted by the labourers are not brought on record of the case. The witness of Bardhan & Co. has, in terms, admitted that the workers concerned were working in the stockyard before the contract was entered into by SAIL with Bardhan & Co., and Bardhan & Co. was not concerned with the workmen after the period of contract was over. The evidence on record does not establish that the workmen concerned were recruited by the labour contractors and, thereafter, their services were made available to the writ petitioner. The writ petitioner claims that the workmen are not its employees whereas Bardhan & Co. has claimed that it has no concern whatsoever with the workmen. Naturally, therefore, a question would arise as to who is the employer of the workmen. It is nobody's case that the workmen are self-employed workmen. The writ petitioner could not lead any evidence to show that at the time when the reference was made, an independent handling contractor was appointed who had recruited the workmen. During the pendency of reference, the contract with Bardhan & Co. had come to an end by efflux of time. No evidence could be led by the writ petitioner that after exit of Bardhan & Co. from the scene, another handling contractor was appointed, who had recruited the workmen concerned. Thus, in absence of relevant evidence, the workmen concerned will have to be regarded as employees of the writ petitioner. The claim that the workers have been continued in the stockyard pursuant to directions given by the High Court in the two petitions filed by the workmen, has no substance because the petitions were filed in the year 1990 for protection of service conditions of labourers, but the labourers have been continued in the stockyard at least since 1977. Further, the claim of the witness examined by the respondent No.1 that the contractors have been changed from time to time, but the workers have remained the same is not demonstrated to be untrue by the writ petitioner. Thus, the fact that the labour contractor has, in fact, supplied labourers by making recruitment to the principal Page 39 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined employer is not established at all.
28. So far as the question whether the workers do labour to produce goods or service for the principal employer is concerned, this Court finds that all the major activities of the principal employer carried out at the stockyard are done through the workmen employed. The work of loading and unloading is essential and integral part of business of writ petitioner and without this work, the writ petitioner cannot sell its products. The evidence on record would show that if the labourers stop doing work in the stockyard, the activity in the stockyard would come to a grinding halt. The workers unload, sort out, shift, stack, reload the materials received, for and on behalf of the principal employer and not for the labour contractor. Under the circumstances, there is no manner of doubt that the workmen concerned do the labour work to produce goods or service for business of the principal employer. So far as compliance of the provisions of the Act is concerned, no evidence could be adduced by the writ petitioner to establish that Bardhan & Co. and before that all other contractors had complied with the provisions of the Act. This factor by itself may not be determinative, but is a relevant circumstance, which can be considered along with other factors.
29. If a cumulative effect of abovereferred to factors is taken into consideration, it becomes at once evident that the presence of intermediate contractor with whom alone the workers have immediate or direct relationship, ex-contractu, is of no consequence when on lifting or piercing veil, one discovers that so-called contract of handling entered into with the contractor is a ruse, a facade and a name lender and that the real employer of the workmen is the writ petitioner and not the immediate contractor.
Though instant case will have to be decided with reference to the facts and circumstances as emerging from the evidence led by parties, reference to some of Page 40 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined the judgments relevant on the point would not be out of place. In Hussainbhai, Calicut (supra), a number of workers were engaged to make ropes within factory, but those workmen, according to the petitioner, were hired by contractors, who had executed agreements with the petitioner to get such work done. Therefore, it was contended that the workmen were not workmen of the petitioner, but the contractors' workmen. The Supreme Court indicated true test with brevity and stated that where a worker or group of workers labours to produce goods or services and these goods or service are for the business of another, that other is, in fact, the employer. What is laid down by the Supreme Court is that the person on whose behalf a worker or a group of workers labours to produce goods or services has economic control over the workers' subsistence, skill and continued employment and the presence of intermediate contractors with whom alone the workers have immediate or direct relationship, ex-Contractu, is of no consequence when on lifting veil or looking at the conspectus of factors governing employment, one discerns the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, and not the immediate contractor. What is emphasised by the Supreme Court is that Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industries, the local conditions and the like may be resorted to after ascertaining the true relationship between the parties. Applying these principles to the facts of the present case, this Court finds that the award of the Tribunal impugned in the petition is perfectly inconsonance with the principles enunciated by the Supreme Court.
Further, in Union of India and Others v. Subir Mukharji & Ors,, 1998 (2) SLR 718, the respondents, who were laboureres of M/s.Bandel Handling Porters Cooperative Society Limited, were working under agreement dated November 22, 1994. Thus, there was already a society of which the respondents happened to Page 41 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined be members and being members, they had been supplied by M/s.Bandel Handling Porters Cooperative Society Limited for doing the work for Eastern Railway. It was found that the work which the respondents had been doing was of perennial nature. The Central Administrative Tribunal, after considering the evidence on record, had given directions to Union of India and others to absorb the labourers as their employees. The Supreme Court has held that having regard to the quantum of work available on perennial basis, the direction given by the Central Administrative Tribunal was not liable to be interfered with.
Again in M/s. Bharat Heavy Electrical Limited v. State of U.P. (supra), it was found that gardeners engaged through contractor were looking after lawns and parks inside factory premises campus and residential colony of the company and their work was supervised by employee of the company. It was also noticed that attendance of gardeners was recorded by another employee of the company. The Supreme Court while upholding the award of the Labour Court declaring gardeners as employees of the company, has held that the gardeners were employed with the company to work in its premises. The Supreme Court has applied "control" test and held that that though the work of gardeners was not integral part of industry of the company that would not make them any the less employees of the company. What is relevant to notice is that in paragraph 12 of the reported decision, the Supreme Court has held that the case of Hussainbhai, Calicut (supra) is neither dissented from nor diluted by the decision of the Supreme Court in Steel Authority of India Ltd. v. National Union Waterfront Workers, (2001) 7 SCC 1, and the Court has, in fact, relied upon the said decision for the purpose of granting relief to the gardeners.
30. Applying the principles laid down by the Supreme Court in the above quoted decisions to the facts emerging from the record of the case, this Court finds Page 42 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined that a correct approach has been adopted by the Tribunal while adjudicating the dispute referred to it and as it has acted within its domain, the same cannot be interfered with in instant petition.
31. The plea that writ of certiorari as claimed by the writ petitioner should be issued because evidence on record has not been considered by the Tribunal and the findings have been reached contrary to or without considering and appreciating oral evidence, and after applying wrong tests, has no substance nor the contention that the findings of jurisdictional facts have been reached unreasonably and arbitrarily by ignoring various clauses of the contract between the writ petitioner and the contractor and, therefore, the petition should be allowed, can be accepted. It is relevant to notice that only materials before the Tribunal were; (a) charter of demand dated March 21, 1992 made on behalf of the workmen, (b) writ petitioner's reply dated June 26, 1993 to the same, (c) reference dated July 31, 1993, (d) statement of claim filed by the respondent No.1, (e) written statement of the writ petitioner, (f) oral evidence of Dhanu Prasad on behalf of the respondent No.1, (g) oral evidence of witness of Bardhan & Co., (h) oral evidence of witness of the writ petitioner, (i) original contract dated October 23, 1993 entered into with Bardhan & Co., (j) statement of terms and conditions of contract dated October 23, 1993, (k) guidelines to be complied with by handling contractor, (l) xerox copy of a registration certificate issued to the handling contractor, and (m) xerox copy of labour licence granted under the provisions of the Act. On the basis of the abovereferred to materials and the submissions advanced at the Bar, the Tribunal has recorded the findings namely; (i) 160 workers are concerned in the reference, (ii) the workers are doing the work in the stockyard since many years and few of them even more that 20 years,
(iii) the company is working in three shifts round the clock, (iv) the workers have remained the same though the contractors have changed from time to time, (v) the Page 43 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined work is of permanent and perennial nature and it is neither intermittent nor contingent nor occasional nor temporary, (vi) the work of loading and unloading is integral and essential part of the business of the writ petitioner and without this work the writ petitioner cannot sell its products, (vii) the writ petitioner has continued to engage substantial number of workers and not mere two or three or four workers, (viii) all the important aspects, namely, yard, place, tools, materials to be handled, guidance, detailed instructions, etc. belong to SAIL, and (ix) the workers concerned are not engaged by the contractor.
32. Abovereferred to findings are pure findings of facts reached by the Tribunal after appreciating evidence and, normally, the same cannot be interfered with in a petition, which is essentially filed under Article 227 of the Constitution.
As noted earlier, by filing instant petition under Articles 226 & 227 of the Constitution, the petitioner has claimed writ of certiorari to quash the impugned award of the Tribunal. Therefore, it would be instructive to refer to the scope of jurisdiction to issue a writ of certiorari. This question has been considered by a five judge Constitution Bench of the Supreme Court in Syed Yakoob v. Radhakrishnan, (supra). In that case, a notification, calling for applications for the grant of two stage carriage permits for the route Madras to Chidambaram was issued by the State Transport Authority under the Motor Vehicles Act, 1939. Several applications were received. The authority had granted the first permit to one of the applicants and for the second, it was decided to call for fresh applications. The appellant, as also a number of other applicants, had appealed to the State Transport Appellate Tribunal. The Tribunal had confirmed the grant of the first permit and as regards the second, it had allowed the appeal of the appellant and directed that it should be granted to him. Thereupon, the respondent No.1 had moved the High Court under Article 226 of the Constitution for the Page 44 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined issue of a writ of certiorari and the learned Single Judge, who had heard the matter, had held that the Appellate Tribunal had overlooked relevant considerations and allowed irrelevant considerations to prevail. So holding, the learned Single Judge had made the Rule absolute. A Letters Paten Appeal was preferred by the appellant. The Division Bench had affirmed the order of the learned Single Judge on the ground that the Appellant Tribunal had overlooked material considerations in favour of the respondent No.1, and dismissed the appeal. The appellant had thereupon approached the Supreme Court by way of Special Leave and contended that in issuing the writ of certiorari, the High Court had exceeded its jurisdiction under Article 226 of the Constitution. While allowing the appeal, the Supreme Court has made following pertinent observations in paragraph 7 of the reported judgment.
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact Page 45 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ( (S) AIR 1955 SC 233); Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168."
Again, the scope of writ petition challenging award of Labour Court filed under Article 226 of the Constitution came to be considered by the Supreme Court in Sadhu Ram v. Delhi Transport Corporation Page 46 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined (supra), Therein, Sadhu Ram was a probationer bus conductor whose services were terminated by Delhi Transport Corporation. On failure of conciliation proceedings, dispute, namely, whether termination of services of Shri Sadhu Ram was illegal and unjustified and if so, what directions were necessary, was referred to the Labour Court. On behalf of management, a contention was raised that the workman had not raised any demand with the management and, therefore, there was no industrial dispute. The Labour Court had overlooked the contention and, after considering the merits, had directed the management to reinstate the workman with full back wages. Thereupon, the management had invoked the jurisdiction of High Court of Delhi under Article 226 of the Constitution. The High Court had gone into a learned discussion on what was an industrial dispute, but the Supreme Court was of the opinion that it was an entirely unnecessary exercise. The High Court had forgotten the basic fact that the Labour Court had given findings on facts and quashed the award. The workman had approached the Supreme Court under Article 136 of the Constitution. While allowing the appeal, the Supreme Court has held as under:
"3. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but, for that very reason it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be Page 47 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. ..."
33. The relevant observations made by the Supreme Court in the above quoted two decisions make it evident that a limited jurisdiction is available to High Courts while considering the question, whether a writ of certiorari, as claimed by the writ petitioner, can be issued. Under Article 226 of the Constitution, High Court will not interfere with weighing of evidence led before the Tribunal as if the High Court were sitting in appeal. A finding of fact cannot also be challenged on the ground that relevant materials and evidence adduced before the Tribunal was insufficient or inadequate to sustain the findings recorded by the Tribunal. The adequacy or sufficiency of evidence and the inferences to be drawn from the evidence are the exclusive domain of the Tribunal and the same cannot be agitated before the writ Court. This is so because the Tribunal is constituted under Special Legislation to resolve the dispute of a kind qualitatively different from ordinary civil disputes. This is also so because the Tribunals are not bound by strict Rules of evidence. Merely because more than one view is possible on the evidence led before the Tribunal, the writ Court would not be justified to interfere with the findings recorded by the Tribunal. Of course, if the findings recorded by the Tribunal are perverse or irrational or arrived at by ignoring materials on record or arbitrary or contrary to the principles of natural justice, the same can be interfered with by the High Court in a petition under Article 226 of the Constitution wherein certiorari is claimed. However, in instant case, this Court finds that all oral and documentary evidence adduced by the parties is considered by the Tribunal and findings of Page 48 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined facts have been rendered. The finding of the Tribunal on the genuineness of the contract between SAIL and Bardhan & Co. is only one aspect of the controversy, whether workmen were ever employees of the contractors or were always employed by SAIL. The Tribunal has not reached the conclusion regarding direct employment by SAIL of these workmen only on the basis of finding relating to the document in question, but has taken into consideration cumulative effect of facts proved. It would be uncharitable to criticise the Tribunal on this score. It is true that burden of proof to prove the fact rests upon a person who asserts existence of the same, and there is no manner of doubt that primary burden of proof to prove that the workmen concerned were employees of SAIL, was on the workmen. However, both by way of their claim statement and oral evidence, the workmen have established that they were never recruited by any of the contractors and were under control and supervision of SAIL. The Tribunal has considered the evidence led by the writ petitioner, and reached a conclusion in paragraph 13 of the impugned award that the concerned workmen were/are serving under the supervision, control and direction of SAIL. The best evidence that could have been produced, viz. employment record, could not be produced by the writ petitioner before the Tribunal. Further, when the evidence of witness of Bardhan & Co. was recorded before the Tribunal, the term of contract with Bardhan & Co. was over. No evidence was led by the writ petitioner before the Tribunal to show that new handling contractor was appointed to handle the materials received at the stockyard and that the contractor had recruited the workmen concerned. Therefore, it is incorrect to say that the burden of proof has not been discharged by the workmen concerned. Moreover, it is well settled that once the parties have led evidence understanding the nature of the case to be met, and the Court has recorded the findings on the basis of evidence led, the question of burden of proof becomes academic. As observed by the Supreme Court Page 49 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined in Mohd. Shahnavaz Akhtar & Anr. v. IST ADJ, Varasani & Ors., (2002) 9 SCC 375, jurisdiction under Article 226 of the Constitution does not include re-appreciation of evidence and on that basis dislodge the finding of fact recorded by the Tribunal. The findings which have been recorded by the Tribunal are such which could have been reasonably arrived at, properly thought out and logical. Under the circumstances, the findings recorded by the Tribunal and final conclusion based thereon are not liable to be interfered with in instant petition.
34. The plea that the documents produced along with the petition should be taken into consideration while answering the question, whether the workmen concerned are employees of SAIL or not, cannot accepted. The learned Senior Advocates appearing for the respondents have rightly contended that this is a petition which is essentially filed under Article 227 of the Constitution, wherein legality of the award of the Tribunal declaring that the workmen employed in the stockyard located at Kaligam, Ahmedabad, are workmen of SAIL, is under challenge. It is now well established that the award of the Tribunal can be challenged by an aggrieved party, both under Article 226 or 227 of the Constitution or under both the Articles. However, choice is with the aggrieved party. Whether aggrieved party has chosen to approach the High Court under Article 226 or 227 has to be ascertained not only from the pleadings, but also from the fact, whether the Tribunal whose award is challenged is impleaded as one of the necessary parties in the petition. In Udit Narain Singh Malpaharia (supra) the Supreme Court has ruled that the Tribunal is not a necessary party where the petition is filed under Article 227 of the Constitution, but the Tribunal is a necessary party if the petition is filed under Article 226 of the Constitution and appropriate reliefs are claimed. Here in instant case, the petitioner has not impleaded the Industrial Tribunal as one of the respondents in the petition nor claimed any relief as such against the Page 50 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined Industrial Tribunal. This conduct on the part of the writ petitioner in not impleading the Industrial Tribunal as one of the respondents in the petition and in not claiming any specific relief against the Tribunal would indicate that the writ petitioner has chosen to approach the High Court under Article 227 of the Constitution. Therefore, the documents produced by the writ petitioner along with the petition cannot be taken into consideration while answering the question posed for consideration. Further, what is claimed is writ of certiorari and the writ of certiorari means calling of record of subordinate authority and rendering decision by the High Court after considering the materials placed before the authority. The documents which are sought to be relied upon by the writ petitioner in the petition does not form part of record of the Tribunal. Under the circumstances, writ of certiorari cannot be issued on the basis of document sought to be produced and relied upon by the writ petitioner. Moreover, the Tribunal had no opportunity to deal with the documents which are sought to be produced and relied upon by the writ petitioner. These documents never formed part of record of the Tribunal at any stage. Though the documents sought to be relied upon are prior in point of time to the date of reference, none of them was produced by the writ petitioner before the Tribunal. The High Court would not be justified in setting aside the award of the Tribunal on the basis of new documents sought to be produced for the first time in the writ petition. This would be simply unfair to the Tribunal, and does not advance the cause of justice. Therefore, no relief can be granted to the writ petitioner on the basis of new documents sought to be produced and relied upon for the first time in instant petition."
10. In view of the above, we find no reasons to interfere with the award of the Labour Court nor with the judgement of the learned Single Judge. Accordingly, the Page 51 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024 NEUTRAL CITATION C/LPA/1549/2022 CAV JUDGMENT DATED: 22/04/2024 undefined appeal is dismissed. The order impugned in the present appeal is confirmed. Notice of admission is discharged.
Civil application stands disposed of. No costs.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) DIVYA Page 52 of 52 Downloaded on : Wed Apr 24 20:40:28 IST 2024