Judgment:
ORDER
Huluvadi G. Ramesh, J.
1. The management has sought for quashing the award passed by the II Addl. Labour Court, Bangalore on 29.12.2005 in Ref. 64/1997.
2. As it transpires, the respondent was working as a Packer in the Packing Department with effect from June 1989 without any break in service. He had passed his SSLC and was aged about 28 years. However, during December 1992, a false complaint has been lodged against him accusing of removing Rs. 108/- worth copies of Indian Express and Kannada Prabha Supplementaries through the window of the Premises andleter after (sic) was removed from service. Later, in the criminal case he was acquitted. Thereafter, after acquittal on 30.11.1995, he approached the management seeking to take him back on duty. The management refused employment. According to the workman, at the time of joining in June 1989 as a Packer, he was paid Rs. 16/- per day and later, it was enhanced to Rs. 25/- per day. He was discharging the duties assigned to him with utmost devotion. According to the workman, although he was assured that he could report for duties after the acquittal, he was refused employment He was working as Packer in the Packing Section and the said Section was looted after by the Manager of the company i.e., Sankaran Nair who had filed a false case against him. On the ground that there is illegal removal, the workman sought for reinstatement for which, counter was filed before the Labour Court by the management. After inquiry, Labour Court passed the impugned award of reinstatement, with continuity of service and other consequential benefits and 50% back wages from die date of dismissal till his reinstatement. Against the said order, management is before this Court on various grounds.
3. Heard the Counsel for the respective parties.
4. According to the petitioner management, respondent workman was engaged by an independent contractor to cariy out certain operations. The contractor had obtained registration certificate under the Contract Labour (Regulation & Abolition) Act, 1970. Taking the workmen was entrusted to one Seshadri and the workman was engaged by the said contractor. The contractor has relinquished the contract on 1.4.1990. Thereafter, one Gideon took over the contract and he also had obtained a license and they themselves were supervising the work of the labour engaged by them. The workman was the employee of Gideon and not directly employed by the petitioner. As such, there is no relationship of workman and the employer directly between the petitioner and the respondent. The question of refusal of employment by the management does not arise. In spite of the same, without application of mind, Labour Court passed the impugned award which calls for interference.
5. In support of his argument, learned Counsel for the petitioner has relied upon the decision of the Bombay High Court in the case of Abu Marble Mining Pvt. Ltd. v. Regional Director, ESI Corporation, Mumbai : 2005 I LLJ 937 wherein it is held person employed by or through the contractor not under the supervision of the principal employer or as his agent, hence are not 'employees' under the definition under Section 2(9) of the ESI Act, 1948.
6. Per contra, it is the argument of the Counsel representing the management reiterating the stand taken, that mere is refusal of employment and also the workman was victimised by filing a fake complaint but later, he was acquitted by the criminal court and the award of the Labour Court does not call for interference.
7. Learned Counsel, has relied upon the decision in the case of Steel Authority of India Ltd. v. Gujarat Mazdoor Panchayat and Anr. : 2004 II LLJ 970 to contend that material on record show that workmen were under the control and supervision of the management and also to contend that finding of fact reached by the Tribunal need not be interfered in exercise of powers under Article 226/226 of the Constitution.
8. In the light of the arguments advanced, the point for consideration is whether the impugned award of the Labour Court in ordering reinstatement with 50% back wages needs interference.
9. It is seen, the main ground on which the Labour Court has passed the order of reinstatement is, although a theft case was booked against the workman, he was acquitted in the criminal case. Also it has opined that die management did not hold an inquiry nor issued a show cause notice as regards the allegation of theft and accordingly, the petitioner management was not justified in refusing work to the workman without proof of misconduct. Further it has opined that management did not deny die continuos work of the workman in the Packing Department for more than three years except stating that he was working as a contract labour. It has also stated that the workman has worked for more than 240 days immediately before refusal of employment and ordered for reinstatement as a casual worker to his original post together with continuity of service.
10. The approach of the Labour Court appears to be on the premise that he was directly employed by die management without taking into consideration that the Packing work was entrusted to independent contractor Gideon under whom the respondent was working. Even according to me workman, he was paid Rs. 750/- per month but, when the workman services were engaged by an independent contractor and the nature of die work i.e., packing was entrusted to the contractor, it is me independent contractor alone who is answerable and not die management. Unfortunately, die respondent had not made die independent contractor as a party but, he went on making allegations against die management regarding refusal, of employment.
11. In the case of APMC, Tiptur v. Weighmen's Association, APMC yard, Tiptur and Ors. : 2006 III LLJ 454, this Court has held, the question whether the, relationship between the parried is one of employer and employee is a pure question of fact. Where the person asserts the relationship and when it is denied by the employer, it is for the employee and not for the employer to prove the fact.
12. In the case of Chintaman Rao and Anr. v. State of Madhya Pradesh : AIR 1958 SC 388, the concept of 'employment' has been defined i.e., (1) employer (2) employee and (3) contract of employment. Further, defining 'contractor' it is stated that contractor is a person who, in pursuit of MI independent business, undertakes to do a specific job or work for other person without submitting himself to their control in respect of the details of work.
13. The Labour Court failed to take note of die fact that when specifically there is denial by the petitioner that there is no relationship of employer and employee, question of holding a domestic inquiry against die respondent would not arise. More over, the workman also ought to have impleaded Gideon - independent contractor so that he would have stated as to whether the work is directly carried out by the management or through him as an independent contractor for the purpose of any other consequential remedy for the respondent workman and, if the workman has been refused employment directly by the independent contractor then he could have sought for enforcement of the order. By not doing so, the interest of the respondent is in jeopardy.
14. Looking in to certain documents which were produced before the Labour Court at Ex.M3 to M18, Labour Court has opined that they are only sham contractors. But the correspondence between the management and the said Gideon depicts that Gideon was acting as an independent contractor and also had obtained a license and was carrying out the work for the petitioner management. There is also a reference as to the name of the respondent in the letter dated 1.4.1990 addressed to the Assistant Labour Commissioner by Gideon which goes to show that the respondent was working under the said contractor.
15. Labour Court rather tried to come to the conclusion that certain documents produced by the management depicts that neither N. Seshadri nor Gideon never acted as contractors but they were simply name lenders and the alleged contract is nothing but sham contract.
16. Several materials produced by die management as to the correspondence made by it with the Labour Department and the independent contractors depicts the fact that the nature at work entrusted to the respondent workman virtually was being entrusted to the independent contractor i.e., packing work. Although independently some other work is entrusted to the respondent, but the documents as early as in the year 1990 which are the correspondence between the Labour Department and the Management depicts that it is Gideon under whom the respondent was working. It also speaks to the fact mat the work is entrusted to the independent contractor and license in this regard has been obtained and only under permission, such work was being carried out through the labour contractor as such, there is no nexus between the management and the respondent as employer and employee.
17. In the circumstances, it is only Gideon under whom at the relevant point of time, respondent was working as a Packer for which, Gideon could be held responsible if the respondent is not taken on duty and not the petitioner management. Remedy lies to the respondent against Gideon although he is not impleaded. In the circumstances, it is for the respondent to recover the amount from the independent contractor as he could not pursue the remedy seeking for reinstatement with the independent contractor. At this length of time, it would not be appropriate to maintain the order of reinstatement as ordered by the Labour Court that too against the petitioner. The finding of the Labour Court is perverse as it is without properly appreciating the material/documents produced by the management.
18. In the circumstances of the case, in modification of the award of the Labour Court, in lieu of reinstatement, the workman would be entitled for Rs. 50,000/- compensation which could be enforced by the respondent against the independent contractor, according to the management, one C Gideon who at the relevant point of time, was responsible for the same. Accordingly, petition is allowed in part.