| SooperKanoon Citation | sooperkanoon.com/1181939 |
| Court | Guwahati High Court |
| Decided On | Sep-04-2015 |
| Case Number | Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 |
| Judge | Hrishikesh Roy |
| Appellant | Jatin Rajkonwar and Others |
| Respondent | The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others |
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The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]industrial disputes act, 1947 - section 2(s) - contract labour (regulaiton and abolition) act, 1970 - section 12, section 23, section 25 - reinstatement - in appellant/ongc/respondent, three categories of workmen i.e. respondent/khalasis/petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - tribunal answered reference by drawing inference from lapses of ongc and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - appellant challenged.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]judgment and order (oral) 1. the challenge in both the cases is to the award dated 31.12.2005 in the reference no.8(c) of 2000, rendered by the learned industrial tribunal, guwahati. the wp(c) no.2139/2008 is filed by 7 khalasis, who according to the presiding officer, did not deserve reinstatement and regularization. whereas the wp(c) no.5446/2006 is filed by the management of the oil and natural gas corporation ltd. (in short the ongc ) to challenge that part of the award, whereby the learned industrial tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent nos.3-5. 2. the aggrieved khalasis (hereinafter referred to as the workmen ) in the wp(c) no.2139/2008 are represented by the learned senior counsel mr. a......Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Judgment and Order (Oral)
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
If so, to what relief they are entitled ? .
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(i) who appoints the workers;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) who pays the salary/remuneration;
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The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) who has the authority to dismiss;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iv) who can take disciplinary action;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(v) whether there is continuity of service; and
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(vi) extent of control and supervision i.e. whether there exists complete control and supervision.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 28include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 29include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 30include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 31include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 32include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 33include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 34include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 35include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 36include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p style="text-align: justify;">Judgment and Order (Oral)</p><p style="text-align: justify;"> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p style="text-align: justify;"> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p style="text-align: justify;"> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p style="text-align: justify;"> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p style="text-align: justify;"> If so, to what relief they are entitled ? .</p><p style="text-align: justify;"> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p style="text-align: justify;"> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p style="text-align: justify;"> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p style="text-align: justify;"> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p style="text-align: justify;"> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p style="text-align: justify;"> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p style="text-align: justify;"> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p style="text-align: justify;"> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p style="text-align: justify;"> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p style="text-align: justify;"> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p style="text-align: justify;"> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p style="text-align: justify;"> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p style="text-align: justify;"> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p style="text-align: justify;"> (i) who appoints the workers;</p><p style="text-align: justify;"> (ii) who pays the salary/remuneration;</p><p style="text-align: justify;"> (iii) who has the authority to dismiss;</p><p style="text-align: justify;"> (iv) who can take disciplinary action;</p><p style="text-align: justify;"> (v) whether there is continuity of service; and</p><p style="text-align: justify;"> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p style="text-align: justify;"> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p style="text-align: justify;"> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p style="text-align: justify;"> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p style="text-align: justify;"> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p style="text-align: justify;"> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p style="text-align: justify;"> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p style="text-align: justify;"> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p style="text-align: justify;"> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p style="text-align: justify;"> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p style="text-align: justify;"> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p style="text-align: justify;"> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'jatin-rajkonwar-vs-corporation-represented', 'args' => array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) ) $title_for_layout = 'Jatin Rajkonwar and Others Vs the Management of Oil and Natural Gas Corporation Ltd Represented by the Regional Director Ongc Nazira Sibsagar and Others - Citation 1181939 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1181939', 'acts' => null, 'appealno' => 'Writ Petition (C) No. 2139 of 2008 & Writ Petition (C) No. 5446 of 2006 ', 'appellant' => 'Jatin Rajkonwar and Others ', 'authreffered' => null, 'casename' => 'Jatin Rajkonwar and Others Vs. The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'casenote' => 'Industrial Disputes Act, 1947 - Section 2(s) - Contract Labour (Regulaiton and Abolition) Act, 1970 - Section 12, Section 23, Section 25 - Reinstatement - In Appellant/ONGC/Respondent, three categories of workmen i.e. Respondent/Khalasis/Petitioner, attendants and typists were initially engaged directly under employer and subsequently they were engaged under contractor - Services of workmen were dispensed and accordingly an industrial dispute was raised leading to reference - Tribunal answered reference by drawing inference from lapses of ONGC and labour contractor, who failed to establish that workmen were engaged legitimately under labour contractor during relevant period and such opinion was not given on basis of due evidence, obliged to be adduced by workmen - Appellant challenged award passed by Tribunal, filed by Petitioners/7 Khalasis, who according to Presiding Officer, did not deserve reinstatement and regularization - Court held - Tribunal can t overlook available evidence or give greater weightage for certain contingencies - Relationship of ONGC and workmen to be that of an employer and employees must be established through cogent material and conclusion can t be a matter of inference on account of non adherence to requirement of 1970 Act, by labour contractor and ONGC - A perverse award was given by Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on basis of inconclusive and inadequate material - Accordingly award was held to be unsustainable and same was quashed - Both cases were thus remanded to Tribunal for a fresh decision by taking into account existing and fresh evidence as may be adduced by parties - While matter was under reconsideration, ONGC may engage service of workmen as per their requirement and in accordance with norms - It was ordered so accordingly - With above order, two cases were disposed of. Para: (21, 22) Cases Referred: 1. Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695 2. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407 3. Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 4. Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 5. Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161 6. Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601 7. Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 8. Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257) 9. Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498 10. General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275). Comparative Citation: 2015 (4) LLN 104, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2015-09-04', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Hrishikesh Roy', 'judgement' => '<p>Judgment and Order (Oral)</p><p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.</p><p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.</p><p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:</p><p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?</p><p> If so, to what relief they are entitled ? .</p><p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.</p><p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.</p><p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.</p><p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.</p><p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.</p><p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.</p><p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.</p><p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.</p><p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.</p><p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.</p><p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.</p><p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.</p><p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).</p><p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-</p><p> (i) who appoints the workers;</p><p> (ii) who pays the salary/remuneration;</p><p> (iii) who has the authority to dismiss;</p><p> (iv) who can take disciplinary action;</p><p> (v) whether there is continuity of service; and</p><p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.</p><p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.</p><p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).</p><p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).</p><p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.</p><p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.</p><p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.</p><p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.</p><p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.</p><p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.</p><p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.</p><p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The Management of Oil and Natural Gas Corporation Ltd., Represented by the Regional Director, ONGC, Nazira, Sibsagar and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'jatin-rajkonwar-vs-corporation-represented' $args = array( (int) 0 => '1181939', (int) 1 => 'jatin-rajkonwar-vs-corporation-represented' ) $url = 'https://sooperkanoon.com/case/amp/1181939/jatin-rajkonwar-vs-corporation-represented' $ctype = ' High Court' $content = array( (int) 0 => '<p>Judgment and Order (Oral)', (int) 1 => '<p> 1. The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short the ONGC ) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos.3-5.', (int) 2 => '<p> 2. The aggrieved Khalasis (hereinafter referred to as the workmen ) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.', (int) 3 => '<p> 3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:', (int) 4 => '<p> Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?', (int) 5 => '<p> If so, to what relief they are entitled ? .', (int) 6 => '<p> 4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulaiton and Abolition) Act, 1970 (hereinafter referred to as the Abolition Act ) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.', (int) 7 => '<p> 5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act ). The specific case projected by the management is that the workmen were the contractor s employee and therefore they can t claim the right of reinstatement/regularization in the ONGC.', (int) 8 => '<p> 6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.', (int) 9 => '<p> 7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan. From amongst the Khalasis , evidence was given by Jatin Rajkonwar as WW.2, who proved the payment vouchers (Exhibit-L and M) to show that the workmen received payment from the ONGC but it was disbursed nominally through the contractor. Similar evidence was given by the attendant Hira Nath Mahanta, who testified as WW.4.', (int) 10 => '<p> 8. On the basis of the materials on record, the learned Industrial Tribunal concluded that the alleged contract between the ONGC and the labour contractor Tuniram Phukan (MW.2) was nothing but a camouflage and accordingly it was held that all the workmen were employed by the ONGC. But on the issue of regularization, the Presiding Officer found that only the work of the 3 typists were perennial in nature and accordingly regularization direction was given only for the typists. But for the Khalasis and the attendants, the learned Tribunal opined that they failed to prove to the Tribunal s satisfaction that their jobs were perennial in nature and accordingly it was held that they do not deserve similar relief of reinstatement and regularization.', (int) 11 => '<p> 9.1. Assailing the legality of the award in the Reference No.8(C) of 2000, Mr. A. Dasgupta, the learned senior counsel submits that relevant evidence namely that of WW.2 Jatin Rajkonwar and WW.4 Hira Nath Mahanta were totally ignored by the Tribunal which wrongly recorded that the workmen did not examine themselves and that they failed to produce evidence in support of their claim.', (int) 12 => '<p> 9.2. The senior counsel refers to the report dated 5.1.1998 (Annexure-F) given by the Asstt. Labour Commissioner to project that a clear finding in favour of the workmen was recorded in the report prepared in pursuant to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) and accordingly it is argued by Mr. Dasgupta that relevant materials were ignored by the Tribunal to give an adverse verdict against the Khalasis.', (int) 13 => '<p> 10.1. Representing the ONGC, Mr. G.N. Sahewalla, the learned senior counsel submits that when contract labours are engaged through an unlicensed contractor, penal consequences are prescribed under Section 23 and 25 of the Abolition Act and he argues that the effect of non-registration of the labour contractor by itself, can t give rise to a claim for regularization for the workmen. In support of this contention, Mr. Sahewalla relies on Dena Nath vs. National Fertilisers Ltd. reported in (1992) 1 SCC 695. The management lawyer also cites Balwant Rai Saluja vs. AIR India Limited reported in (2014) 9 SCC 407, to project that several relevant factors are to be taken into account to establish an employer/ employee relationship and the issue can t be concluded only upon the fact that the concerned workmen were serving through an unlicensed labour contractor.', (int) 14 => '<p> 10.2. Placing reliance on Electronics Corporation of India Ltd. vs. Electronics Corporation of India Service Engineers Union reported in (2006) 7 SCC 330 and Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20, the learned senior counsel argues that the onus to establish the employer/ employee relationship is on the workmen and inferences can t be drawn on account of default of the contractor and the management, under the Abolition Act.', (int) 15 => '<p> 10.3. Since the workmen are classified as temporary or casual under Clause-2 of the Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission (hereinafter referred to as the Standing Orders ), Mr. Sahewalla submits that the number of days service was rendered, has to be established by the workmen themselves. In support of this contention, the senior counsel for the management cites Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan reported in (2004) 8 SCC 161.', (int) 16 => '<p> 11.1. Representing the private respondents, Mr. B.D. Konwar, the learned senior counsel submits that the job of typist(s) is perennial in nature and since the notification was issued by the Central Government on 8.1.1994, whereby engagement of typists as contract labours was prohibited in the ONGC, logical conclusion must be drawn that the typists were direct employees under the ONGC, since the labour contractor secured his license only on 29.9.1989.', (int) 17 => '<p> 11.2. The learned senior counsel refers to the direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) to contend that the ONGC had a moral duty to acknowledge that the workmen were their direct employees and should not have resorted to camouflage, to deny due benefits to the workmen.', (int) 18 => '<p> 12. When claim for absorption is made by a set of workmen who are shown to be engaged under the contractor, the Supreme Court has called upon the Courts to examine whether any genuine contract labour system is prevalent in the concerned organization, where contract labours are abolished by the Government. Lifting of the veil was emphasized by the Court to ascertain whether the employees were employed by the principal employer or whether the contract system was a mere camouflage (see Secretary, H.S.E.B. vs. Suresh reported in (1999) 3 SCC 601, Steel Authority of India Ltd. vs. National Union Waterfront Workers reported in (2001) 7 SCC 1 and Hussainbhai vs. the Alath Factory Thezhilali Union, Kozhikode reported in (1978) 4 SCC 257).', (int) 19 => '<p> 13. The existence of employer/employee relationship between the management and the workmen has to be tested by applying multiple tests and no magic formula can be propounded to say that a particular factor in a given case should be the deciding factor (see Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments reported in (1974) 3 SCC 498). In Balwant Rai Saluja (Supra), the Apex Court spoke about the test of complete administrative control to establish the employer/employee relationship. The relevant factors, inter alia, would include, according to this decision are:-', (int) 20 => '<p> (i) who appoints the workers;', (int) 21 => '<p> (ii) who pays the salary/remuneration;', (int) 22 => '<p> (iii) who has the authority to dismiss;', (int) 23 => '<p> (iv) who can take disciplinary action;', (int) 24 => '<p> (v) whether there is continuity of service; and', (int) 25 => '<p> (vi) extent of control and supervision i.e. whether there exists complete control and supervision.', (int) 26 => '<p> But it is apparent that these parameters are only illustrative and there could be additional inputs in given circumstances.', (int) 27 => '<p> 14. But the onus to prove the employer/ employee relationship is certainly on the workmen who claim benefits by pleading existence of such relationship. This was the opinion of the Supreme Court in Electronics Corporation of India Service Engineers Union (Supra) and also in Kanpur Electricity Supply Company Ltd. (Supra).', (int) 28 => '<p> 15. At the same time it is well settled that interference with the award of an Industrial Tribunal should not be made in a routine fashion and only when perversity or patent illegality is noticed in the award, interference by the High Court would be justified (see General Manager, Oil and Natural Gas Commission vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275).', (int) 29 => '<p> 16. Proceeding on the above noted ratio of the Supreme Court decisions, what is glaring in the present case is that although evidence was given by one of the Khalasis i.e. Jatin Rajkonwar (WW.2) and one of the attender Hira Nath Mahanta (WW.4), the learned Tribunal failed to take their evidence into account by erroneously observing that the concerned workmen did not examine themselves. Moreover the relevant report (Annexure-F), given by the Asstt. Labour Commissioner on 5.1.1998 prepared in pursuant to the Court s direction in the Civil Rule No.3366/1995 was not considered appropriately by the learned Tribunal, while segregated the claims of the 3 typists from the other workmen, although similar conclusion for all 3 categories of workmen was reached by the Asstt. Labour Commissioner.', (int) 30 => '<p> 17. It further appears that the finding in favour of the typists was given on the basis of inferences drawn on account of the failure of the management to prove that the workmen were legitimately engaged through the labour contractor but there is no application of mind to the parameters as enunciated in Balwant Rai Saluja (Supra) and Silver Jubilee Tailoring House (Supra). Thus in my assessment, the onus of proving their case was not fully discharged by these workmen. More particularly the workmen failed to prove through appropriate evidence that, they worked for at least 240 days in a given year, as it is necessary to establish to claim regularization under Clause 2 of the Standing Orders.', (int) 31 => '<p> 18. In the present case, the workmen were engaged for many years with the ONGC and it is possible through lifting of veil to reasonably infer that the ONGC exercised complete administrative control and an employer/employee relationship was existing between the workmen and the ONGC. But in my considered opinion this can t be the inevitable conclusion merely because, the labour contractor secured his license only on 29.9.1989.', (int) 32 => '<p> 19. That apart, the admissibility of the evidence (Exhibit-L and M) was also required to be considered by the Tribunal, as this shows payment to the workmen in presence of the representative of the management but this mode is the due process under the Abolition Act and the presence of the management s representative during disbursal of the workmen s salary by itself, does not conclusively establish that the workmen were employees of the ONGC.', (int) 33 => '<p> 20. In my perception, the learned Tribunal answered the reference by drawing inference from the lapses of the ONGC and the labour contractor, who failed to establish that the workmen were engaged legitimately under the labour contractor during the relevant period and such opinion was not given on the basis of due evidence, obliged to be adduced by the workmen.', (int) 34 => '<p> 21. To ascertain whether the workmen in the present case can be treated as the employees of the ONGC, several factors are required to be considered and the necessary evidence must be presented by the workmen to establish their status for the conclusion that they expect from the adjudicatory forum. The learned Tribunal can t overlook available evidence or give greater weightage for certain contingencies. The relationship of the ONGC and the workmen to be that of an employer and employees must be established through cogent material and the conclusion can t be a matter of inference on account of non-adherence to the requirement of the Abolition Act, by the labour contractor and the ONGC.', (int) 35 => '<p> 22. In the above backdrop, I hold that a perverse award was given by the learned Industrial Tribunal, since relevant evidence was ignored to deny relief and inference was drawn on the basis of inconclusive and inadequate material. Accordingly the impugned award dated 31.12.2005 in the Reference No.8(C) of 2000 is held to be unsustainable and the same is quashed. Both cases are thus remanded to the Tribunal for a fresh decision by taking into account the existing and fresh evidence as may be adduced by the parties. While the matter is under re-consideration, the ONGC may engage the service of the workmen as per their requirement and in accordance with the norms. It is ordered so accordingly.', (int) 36 => '<p> 23. With the above order, the two cases are disposed of, by leaving the parties to bear their own cost.', (int) 37 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 38 $i = (int) 37include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109