Raj Pal vs Presiding Officer

Rameshwar Singh Malik, J.—This order will dispose of seven identical writ petitions filed by the workmen against similar awards passed by the learned Labour Court, thereby deciding the reference in favour of respondent No. 2-management and against the petitioners-workmen. The particulars of all the seven cases are as follows:-

C.W.P. No. 4957 of 2010, Raj Pal v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 4958 of 2010, Dinesh v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 5193 of 2010, Om Parkash v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 5195 of 2010, Jagdish v. Presiding

Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 5226 of 2010, Jagdish v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 5229 of 2010, Mahavir Ram v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

C.W.P. No. 5230 of 2010, Partap Singh v. Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others.

However, for the facility of reference, facts are being culled out from C.W.P. No. 4597 of 2010 (Raj Pal v. residing Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad an others).

To unravel the short controversy involved between the parties, brief narration of essential facts would be required. It is the pleaded case of the petitioner that he was employed by respondent No. 2 as Helper with effect from 6.6.1986. His services came to be terminated on 5.2.2001. Demand notice was submitted on 12.2.2001. Conciliation proceedings failed and thereafter appropriate government referred the industrial dispute to the learned Labour Court for its adjudication. Petitioner-workman filed his claim statement Annexure P-1. Respondent No. 3 (Contractor) filed his written statement vide Annexure P-2. Respondent No. 2 also filed its written statement before the learned Labour Court vide Annexure P-3 and pursuant thereto, petitioner workman filed his replication vide Annexure P-4. On completion of pleadings, parties led their respective evidence before the learned Labour Court. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that since the petitioner-workman failed to establish his relation of master and servant with respondent No. 2, he was not entitled to the relief claimed and the reference was accordingly decided against the workman. Hence this writ petition.

Notice of motion was issued and respondents were served. Respondent No. 2 has filed its written statement, whereas learned counsel for respondent No. 3 appeared on 22.7.2010 and on 29.10.2010, however, thereafter nobody appeared on behalf of respondent No. 3, except on 11.3.2011.

Learned counsel for the petitioner submits that the petitioner workman duly discharged his onus by leading cogent evidence. He further submits that the learned Labour Court misdirected itself, while not appreciating the documentary as well as oral evidence in the right perspective, because of which the impugned award has resulted in miscarriage of justice and the same was liable to be set aside. Referring to the pleadings and evidence of the parties, which were available before the learned Labour Court, learned counsel for the petitioner next contended that right from 1986 to 2001, there was no agreement between respondents No. 2 and 3. He places heavy reliance on Annexure P-7, a document showing the direct relationship between the petitioner and respondent No. 2. Similarly, another document Annexure P-6 would show the relationship of master and servant between the petitioner and respondent No. 2.

He relies upon the provisions of law contained in Section 29 of the Contract Labour (Regulation and Abolition) Act, 1970 (''Contract Labour Act'' for short) to contend that the respondent-employer was under legal obligation to maintain the service record of even those employees, who were employed under the contractor. Referring to Annexure R-2/4, which is an agreement dated 23.3.2002 between respondents No. 2 and 3, learned counsel for the petitioner submits that this agreement was of no relevance because the services of the petitioner had already been terminated on 5.2.2001. Assailing the findings recorded by the learned Labour Court in paras 20 and 21 of the impugned award, he submits that the learned Labour Court failed to appreciate the true import of the evidence brought on record, which was clearly in favour of the workman and against the respondent-management. Finally, he prays for setting aside the impugned award by allowing the present writ petition.

Per contra, learned counsel for respondent No. 2 vehemently contended that in the present case, petitioner-workman had miserably failed to discharge the initial onus, which was admittedly on him. He failed to produce sufficient evidence, so as to establish the relationship of master and servant between him and respondent No. 2. Referring to Annexures P-6 and P-7, he submits that these documents would not be sufficient to establish the relationship of master and servant. Pointing out towards the pleadings of the petitioner himself, learned counsel for respondent No. 2 would contend that the evidence led by the petitioner-workman was contrary to his own pleadings and was, thus, not reliable. He also submits that it was not the statutory requirement for respondent No. 2 to enter into an agreement with respondent No. 3 (Contractor) for providing required number of workers. In support of his submissions, learned counsel for respondent No. 2 relies on the following judgments:

Gian Singh and Others Vs. Senior Regional Manager, Food Corporation of India, Punjab Region and Others,

Dena Nath and others Vs. National Fertilisers Ltd. and others,

Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc.,

Automobile Assoc. Upper India Vs. The P.O. Labour Court II and Another,

The Range Forest Officer Vs. S.T. Hadimani,

V.K. Raj Industries, Aligarh v. The Labour Court (I) V.P. At Kanpur and others, 1982 LAB I.C. 551.

N.T.P.C. and Others Vs. Badri Singh Thakur and Others,

Sunflag Iron and Steel Company Ltd. Vs. State of Maharashtra and Others, and

Cement Corporation of India Ltd. Vs. Presiding Officer, Labour Court-cum-Industrial Tribunal and Others,

He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that the instant writ petition deserves to be allowed and the impugned award passed by the learned Labour Court is liable to be set aside. To say so, reasons are more than one, which are being recorded hereinafter.

The first relevant piece of evidence in the present case was Annexure P-7, which shows the date of appointment of the petitioner as 6.6.1986 and respondent No. 2, i.e. M/s. Hyderabad Industries Ltd., was the employer. Petitioner as well as respondent No. 2 are signatory to this document. Thus, a close perusal of this document (Annexure P-7) would show the relationship between petitioner and respondent No. 2 as that of master and servant. There is no denial to this material factual aspect of the matter.

Another relevant document in this regard is Annexure P-6, which pertains to Employees Provident Fund Scheme. It contains statement of accounts for the year 1997-98. Besides appearing as his own witness, petitioner produced two more witnesses, so as to discharge his onus to establish the relationship of master and servant between him and respondent No. 2. Further, the evidence led by the petitioner is further corroborated by the statement of MW-2 Sh. Purshottam Dass Kaushik, who was working in the office of Provident Fund Commissioner. He has deposed in his cross-examination that P.F. Slip Ex. W-2 was issued by the department and Raj Palworkman was the workman of M/s. Hyderabad Industries Ltd. Having said that, this court feels no hesitation to conclude that the learned Labour Court fell in serious error of law, while passing the impugned award and the same cannot be sustained.

It is an admitted fact between the parties that no copy of agreement between respondents No. 2 and 3 was placed on record, for the duration right from 1986 to 5.2.2001. The argument raised by learned counsel for respondent No. 2 in this regard that it was not the statutory requirement for the principal employer to enter into an agreement with the Contractor, has been found to be without any force and also contrary to the stand taken in para. 10 of the written statement. The specific averments have been taken as under:-

"It is further incorrect to say that there was no agreement between answering respondent and respondent No. 3. As a matter of fact, there was an agreement having been entered into between the answering respondent and respondent No. 2. A copy of the last such Agreement dated March 23, 2002 is attached as Annexure R-2/4."

A careful reading of the abovesaid averments taken on behalf of respondent No. 2 would show that although there were agreements between respondents No. 2 and 3, yet the same have been withheld by the respondent employer for the reasons best known to it. Neither any such agreement was placed before the learned Labour Court nor has been placed before this court.

Further, once the workman has discharged his initial onus by stepping into the witness box and producing his evidence, including documentary as well as oral evidence by two more witnesses, the onus would shift to the management. However, in the present case, respondent management did not produce any official record, including the muster roll, salary register or any other relevant record, which might have disproved the case of the workman that he had not been under the employment of the respondent-management at any point of time right from 1986 to 2001.

It goes without saying that the official record is always maintained by and remains in the custody of the employer. In such a situation, it was least expected from the respondent-management to produce the relevant official record before the learned Labour Court. However, the respondent-management failed to do so for the reasons best known to it. In this view of the matter, it is unhesitatingly held that the learned Labour Court ought to have drawn adverse inference against the respondent-management for not producing the relevant official record, which was admittedly in its possession. Since the learned Labour Court did not appreciate this material aspect of the matter in the right perspective, the impugned award cannot be sustained for this reason also.

So far as the judgments relied upon by learned counsel for the respondent No. 2 are concerned, there is no dispute about the law laid down therein. However, the judgments have been found to be clearly distinguishable on facts, therefore, are of no help to the respondent management. All these judgments were rendered in different set of circumstances. It is the settled proposition of law that peculiar facts and circumstances of each case are to be examined, considered and appreciated first before applying any codified or judge made law thereto. Sometimes, difference of one additional fact or circumstance can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others,

Learned counsel for respondent-management was right in contending that there were some contradictions in the pleadings vis-a-vis evidence led by the petitioner-workman. However, the cumulative effect of the pleadings and evidence would leave no room for doubt that it was respondent No. 2, who was the employer of petitioner-workman. Sufficient, reliable and cogent evidence was available on record to establish the relationship of master and servant between petitioner and respondent No. 2. However, learned Labour Court failed to delve deep into real crux of the matter that it was respondent No. 2 and not respondent No. 3, who was the employer of the petitioner workman.

Even the witnesses of the respondent-management have proved the case of the petitioner-workman. Relevant part of the cross-examination of MW-1 Sh. Sadik Ansari, reads as under:-

"It is correct that the Code of Hyderabad Industries is 13/5606. It is also correct that the ESI card number 6032944 has been allotted to the workman through this Code."

Further, in the absence of any agreement between the respondent management and the alleged Contractor-respondent No. 3, the respondent management cannot be permitted to draw any benefit out of its own wrong. If any inference is to be drawn that will certainly go against the management. In the present case, it is also an undisputed fact between the parties that the respondent-management did not maintain any record for the employees, who were allegedly working for it but through the Contractor-respondent No. 3. Thus, the respondent-management failed to perform its statutory duty as well, as envisaged u/s 29 of the Contract Labour Act. Under these circumstances, the learned Labour Court ought to have decided the reference in favour of the petitioner-workman and against the respondent-management. Thus, the impugned award cannot be sustained for this reason, as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the peculiar fact situation of the present case, the instant writ petition deserves to be allowed and the impugned award passed by the learned Labour Court cannot be sustained. Impugned award dated 11.12.2009 (Annexure P-5) is hereby ordered to be set aside. Consequently, since the petitioner-workman had rendered a long service of more than 14 years, he is directed to be reinstated with continuity of service. However, striking a balance between the parties, this court is of the view that 50% back wages would meet the ends of justice. Let the respondent management do the needful within a period of three months from the date of receipt of a certified copy of this order, failing which the petitioner shall be entitled for the amount of back wages alongwith interest @ 9% per annum from the date it became due till the actual date of payment.

Resultantly, with the observations made and directions issued, as hereinabove, all the seven writ petitions stand allowed, however, with no order as to costs.