Document Fragment View

Matching Fragments

7. Respondent No. 2 (M/s. Indian Industrial Security Co. (P) Ltd) failed to appear before the learned Labour Court despite service. Hence, Respondent No.2 was proceeded ex-parte by the learned Labour Court.

8. Respondent No.1/ Management has filed their reply before the learned Labour Court. In the said reply, Respondent No.1/ management denied the existence of employer-employee relationship between the Petitioner/Workman and Respondent No.1/ Management. It is the case of Respondent No.1/Management that Respondent No.2 was their registered and NEUTRAL CITATION NO: 2023: DHC: 2009 approved licensed Contractor and was therefore awarded the contract for the security services to Respondent No.2 Contractor. The Petitioner/Workman was an employee of Respondent No.2 Contractor and Respondent No.1/Management had no privity of contract with the Petitioner/Workman. Respondent No.1/Management denied that it violated any provisions of the ID Act or the Contract Labour (Regulation & Abolition) Act, 1970 ("CLRA Act").

23.Learned counsel for the Petitioner/Workman relied on the Award dated 21.04.2006 passed by the learned Labour Court in ID No. 31/2003 to show that the Petitioner/Workman had served Respondent No.1/Management for more than 240 days. However, a perusal of the said Award clearly shows that based on the evidence adduced by the Workmen therein, the learned Labour Court concluded that the Workmen concerned are not the employees of Respondent No.1/Management, but that of Respondent No.3/Contractor. In the said proceedings, the Petitioner/Workman argued that Respondent No.3/contractor was not traceable and hence under Section 21 of the CLRA Act, it is the responsibility of Respondent No.1/ Management being the principal employer to implement the said Award. The said proceedings finally culminated as Order dated 03.09.2013 in LPA 351/2013. In the said LPA, the Hon‟ble Division Bench of NEUTRAL CITATION NO: 2023: DHC: 2009 this Court observed that as per Section 21(4) of the CLRA Act, in case the contractor fails to pay the wages of the workmen, the said amount can be recovered from the principal employer. In view of the said provision, the Hon‟ble Division Bench directed the Deputy Labour Commissioner to consider the contention of the parties and issue recovery certificate accordingly. In pursuance of the said direction, Respondent No.1/ Management paid the wages to the Petitioner/Workmen for the period from 27.10.2000 to 02.10.2002 in their capacity as principal employer with liberty to recover the said amount from the employer of the Petitioner/Workman, i.e., Respondent no.3/contractor therein. Hence, it is evident from the various orders passed in these matters that Respondent Nos. 2&3 contractors were treated as the employer of the Petitioner/Workman. Respondent No.1/ Management was treated as the principal employer.

24.Section 20 & 21 of the CLRA Act deal with the liabilities & responsibilities of the principal employer. As per Section 20 of the CLRA Act, it is the responsibility of the principal employer to ensure that the workmen are provided with the amenities as per sections 16, 17, 18 and 19 of the said Act. In case the contractor fails to provide the said amenities, the duty is cast upon the principal employer to provide the said amenities to the workmen at the cost of the contractor. Further, as per Section 21 of the CLRA Act, it is the primary duty of the contractor to provide the wages to the workmen. However, in case of a failure on the part of the contractor to pay the wages to the workmen, NEUTRAL CITATION NO: 2023: DHC: 2009 duty is cast upon the principal employer to make the said payment which is subject to recovery from the contractor. However, in the present case, both Sections 20 & 21 of the said Act, are not attracted. As a principal employer, Respondent No.1/Management has no control over the Contractor to decide the service conditions of its employees. The determination of the service conditions of the employees was exclusively within the domain of the contractor. No evidence whatsoever has been placed on record to prove that Respondent No.1/ Management has any control in determining the service conditions of the employees of the contractor. Further, the Constitution Bench of the Hon‟ble Supreme Court in Steel Authority of India Vs National Union Waterfront Workers reported as 2001 (7) SCC 1 categorically held that no relationship of master and servant is created between the principal employer and the contract labour by virtue of engagement of the contract labour by the contractor in any work of or in connection with the work of a principal employer. This being the position, Respondent No.1/ Management cannot be held responsible for altering the service conditions of the Petitioner/Workman during the pendency of the pending industrial dispute.

25.Learned counsel for the Petitioner/Workman also sought to rely on the recommendation of the Central Advisory Contract Labour Board dated 18.12.2001 to argue that Respondent No.1/Management is engaging contract employees contrary to the CLRA Act. However, a perusal of the said recommendations NEUTRAL CITATION NO: 2023: DHC: 2009 reveals that there was no recommendation from the Board for the abolition of contract labour regarding the post of „Chowkidar‟. The Petitioner/Workman was working as Chowkidar and it cannot be said that the employment of the Petitioner/Workman through the Contractor was in contravention of the CLRA Act.