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Union's statement of claim

6. The Union filed its statement of claim in the Tribunal on 28th January, 2004. Inter alia, the contention of the Union was that M/s. Balaji Traders was a fictitious entity; that OCFL as well as the said contractor did not obtain the registration under the Contract Labour (Regulation and Abolition) Act, 1970 ('CLRA Act') and the act of placing the services of Workmen under the said contractor was only to deprive them of the legitimate and bona fide rights. It was contended that the so-called contract system was merely a camouflage; in fact, each of the Workmen was engaged on a permanent and perennial basis in OCFL. Without prejudice to the above contentions, it was submitted that even assuming 1139 workers were engaged by the said M/s. Balaji Traders then the OCFL-Management was under an obligation to comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947 ('ID Act') and the Orissa Contract Labour (R & A Rules) 1975 ('Rules'), which require notice and payment of wages in lieu thereof before terminating the services of the Workmen. If the workers were hired to work through a contractor, who did not possess a valid licence under the CLRA Act, then the workers would be treated as Workmen of the principal employer.

7. The Union applied to the Tribunal for a direction to OCFL to produce the applications submitted by it for registration under the CLRA Act and M/s. Balaji Traders to produce the application made by it for being issued a licence under the CLRA Act. It was prayed in the application that the District Labour Officer (DLO), Jagatsinghpur should be asked to produce the relevant register, which would show whether the OCFL as well as the fictitious contractor in question were registered under the CLRA Act. It was further prayed that the Tribunal should direct reinstatement of the 1139 Workmen with OCFL.

e. There was no provision in the CLRA Act or the ID Act to absorb the contract labourers of one contractor under another. Therefore, the claim for absorption under another contractor was not maintainable. There was no evidence on record that the work that used to be performed by the Workmen was being done ordinarily thorough regular workmen of OCFL or for that matter IFFCO.

f. The Workmen were employed during the period of construction of the plant and, therefore, were not integral to the overall work of the plant which produced fertilisers. In terms of Section 10(2) of the CLRA Act neither the control test nor the integration test was fulfilled. The onus on the Workmen to show that they were directly engaged by OCFL was not discharged by them and, therefore, the Tribunal rightly rejected their claim.

38. Therefore, the Tribunal was right in holding that reference was indeed maintainable but on Issue No. 3, the initial burden of proving that the workmen were directly engaged by the OCFL and not through the contractor, was entirely on the Union.

39. Here the Union appears to have run into difficulties because of the stand taken that the contractor itself was a sham entity. The attempt was to show that it was a mere paper entity and the entire contract itself was a camouflage erected by OCFL to avoid the liability arising under the CLRA Act. The difficulty with this approach of the Union was that there were documents to show the existence of the contractor including the license issued to it by the Licensing Authority under the CLRA Act. There were also pay slips issued, gate passes issued by M/s. Balaji Traders. While it is true that some other documents including gate passes were shown to have been issued by OCFL, as rightly pointed out by the Tribunal, such documents by themselves did not demonstrate that each of the 1139 workers were directly engaged by OCFL.