Ms. Yoothica Pallavi, Adv. Mr. Himanshu Sehrawat Adv., along with Ms Monika Madan v. SH REHMAT KHAN & ORS

Judgment

1. The petition has been filed by the petitioner/Handicrafts and Handlooms Export Corporation of India Limited (‘HHEC’), which is a public sector undertaking challenging an ex parte award dated 18th April 2023, passed by the Presiding Officer, CGIT-cum-Labour Court–II, New Delhi in Industrial Dispute Case No.21/2017 (‘impugned award’). Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 1 of 46

2. By the impugned award, petitioner was directed to pay the respondent/workman a lump sum amount of Rs.5 Lacs with 6% interest per annum from the date of the award to the final payment. The dispute was referred by the Government of India under Section 10(1)(D) and Section 10(2)(A) of the Industrial Dispute Act, 1947 (‘ID Act’) framing the issue in the following manner: “Whether the workman i.e. Sh. Rehmat Khan son of Mr. Mohd. Shaffi and 17 others whose details are enclosed herewith reinstatement against Handicrafts and Handlooms Export Corporation of India as Tailor with all consequential benefits? If not, then, what even the workmen are entitled to?” in Annexure HHEC are entitled the management of

3. Reference was answered in favour of workmen/claimants concluding that they were illegally terminated by the HHEC w.e.f. 01st September 1991. Impugned award held that 31 years have passed since it was directed that an amount of compensation, instead of reinstatement of back wages, be awarded.

4. Accordingly, the said Award was for a lump sum payment of Rs.5 Lacs to each of the claimants/workmen within 60 days from the publication of the Award, failing which the amount as directed would carry interest @ 6% per annum from the date of award till the final payment was made. Factual background Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 2 of 46

5. Petitioner is a Government of India company within the meaning of Section 617 of the Companies Act, 1956 having its registered office at Tolstoy Marg, New Delhi, and is under the administrative control of the Ministry of Textiles. Petitioner is engaged in the business of handicrafts and handlooms.

6. Respondent Nos.1-18 were working in the establishment of the petitioner as tailors. While the workmen claimed that they were permanent employees, petitioner claimed that they have been engaged through respondent no.19 (M/s Clothes Channel) a third-party contractor.

7. Petitioner claimed that it had entered into a ‘Contract of Service’ with respondent no.19 for manufacturing garments, and to carry out the work within the premises, on the basis of two agreements i.e. 26 th February 1990 and 03rd April 1991.

8. Petitioner claims that the said agreements specifically provided that petitioner shall not be liable for persons engaged by respondent no.19 and for any act of omission of such persons and no claim shall lie against the petitioner. Respondents claimed that petitioner was not paying the minimum wages as notified and they had raised their demands consistently.

9. Petitioner, however, had made a statement that they were not employees but employees of the contractor, which was refuted by the workmen stating that there was no employer-employee relationship in the contract. Contract, if any, between petitioner and respondent no.19 was a sham and intended to camouflage the legal rights of the workmen. Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 3 of 46

It was contended that petitioner stopped giving work to the workmen w.e.f. 01st September 1991 and terminated their services without notice or without following the procedure. On 04 th March 1991, workmen served a demand notice on petitioner which was not responded to. Dispute was raised before the Labour Commissioner, Ghaziabad and effort for conciliation failed. Hence, the industrial dispute was raised.

11. Petitioner challenged the said award before the High Court of Allahabad which by order dated 22nd August 2016, held that the Labour Court, Ghaziabad did not have jurisdiction and set aside the impugned award. Reference was again made to the Tribunal for adjudication and the impugned award was eventually passed.

12. While the petitioner claimed that by the Allahabad High Court's order of 22nd August 2016, there were clear findings on merits, on the claims made by the workmen, respondents submitted that once the Court had dismissed the award originally based on the issue of jurisdiction, the determination on merits is not conclusive.

13. The Allahabad High Court had effectively held that no letter of appointment was ever brought on record and there was no evidence with regard to the date of engagement of the workmen and no valid contract was entered into between the petitioner and respondents leading to employer -employee relationship. Petitioner claimed that the judgment dated 22nd August 2016, had not been challenged by the workmen and, therefore, the findings attain finality. Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 4 of 46

14. In the second set of proceedings before the Labour Court which led to the impugned award, evidence was filed by respondents/workmen and petitioner.

15. On 18th January 2019 and 04th May 2022, respondent no.1 as witness no.1 (WW-1) and workman/witness no.2 (WW-2) were cross-examined by petitioner. Petitioner submitted that subsequently there were changes in the counsel for petitioner due to which the proceedings could not be attended by petitioner's representative or counsel. The Presiding Officer without issuing any notice to the petitioner proceeded ex parte and passed the impugned award in favour of the workmen.

16. Thereafter, an Execution Petition was filed by the workmen being Execution Petition No.29/2024 before the ADJ, Patiala House and only after receiving notice of the Execution Petition, petitioner came to know about the impugned award. Submissions on behalf of petitioner

17. Counsel for petitioner effectively contended, inter alia, as under: (i) Agreement of 26th February 1990 executed between petitioner (as licensor) and M/s Clothes Channel/respondent no.19 (as licensee/contractor) noted that petitioner was desirous of setting up a tailoring unit in their premises at Sector-2, Noida, and wanted to entrust the work of manufacturing garments to the licensee. Petitioner's counsel pointed out to Clause 9, 11 &13 (a) of the said Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 5 of 46 contract. These clauses effectively provided that the respondent no.19 (licensee/contractor) would be responsible for observation of all statutory conditions and acts for commission and omission of the persons engaged by them. Liability of petitioner was excluded, and all claims against petitioner would first be paid out by respondent no.19/licensee, with a right of petitioner to recover the same from the security and then claim the balance. The persons engaged by the respondent no.19/licensee would not be entitled to any benefits or privileges available to the employees of licensor, and they would not have any claim whatsoever against the licensor/petitioner except to the extent of payment of the bills. The respondent no.19/contractor had to employ their own labour force for the purposes of carrying out the job, and it would not create any relationship of employer-employee between the licensor and licensee. The subsequent agreement executed on 03rd April 1991, also contained similar clauses. Following clauses are extracted as under: statutory “9. That the Licencee shall be responsible for due conditions or observation of all requirements under the various laws applicable to the persons engaged by them. The LICENCEE shall be responsible for the acts of commission and/or omission of the persons engaged by them and for any loss or damage caused by them to the property of the LICENSOR. Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 6 of 46 The LICENSOR shall not in any manner be responsible for any acts of commission and/or omission of the persons engaged by the Licencee and No claims whatsoever in any respect shall lie against the licensor. If there is any such claim against the Licensor, the Licencee shall pay the same on the first demand of the Licensor. The amount of the claims may be recovered out of the security to be deposited by the Licencee with the licensor and the Licensor shall also have the right to recover the same from the bills to be submitted by the Licencee.

11. That the Licencee or the persons engage by them shall not be entitled to any benefits privileges or advantages etc. available to the employee of Licensor. The Licencee will have no claim whatsoever against the Licensor except to the extent of payment of their bills for fabrication of the garments according to the terms of the agreement. 13(a). That the LICENCEE/CONTRACTOR shall employ their own labour force for the purpose of carrying out the jobs entrusted to them and the agreement shall not create any relationship as employer and employee between the LICENSOR AND THE LICENCEE. The LICENCEE will be the first judge as to the number of persons to be engaged for work entrusted to them and the LICENCEE alone will be entitled to dictate to such persons the manner of executing the work without any interference from the LICENSOR. The LICENSOR shall not have any connection, connect or control whatsoever with the persons engaged by the LICENCEE nor will it exercise any supervision or control over the manner by which anything is to be done by the persons engaged by the LICENCEE. The LICENSOR will have nothing to do with the conditions or employment Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 7 of 46 or engagement of or manner of mode of the same. The LICENSOR will not have any control in the matter of re- employment either, nor any such claim shall lie against the LICENSOR.” discharge, dismissal, termination, (ii) Statement of Claim was preferred by the said respondent nos.1-18 on 06th July 2017, effectively claiming facilities. Respondents/workmen claimed that they had initially been working with petitioner at the existing office near ITO, New Delhi, when they joined the services but were later posted at Noida, where their services were terminated by petitioner. The petitioner had not provided any documents appointing the respondents and had never provided them with any legal facilities. To this, a reply had been preferred by petitioner, contending, inter alia, that the claim was hit by res judicata, and the matter had been decided on merits by the Allahabad High Court and had attained a finality. There were liability exclusion clauses in the contract with M/s Clothes Channel/respondent no.19, which was registered under the Employees Provident Fund Act and Miscellaneous Provisions Act, 1952 (‘EPFA’) and Employees’ State Insurance Act, 1948 (‘ESIC’), was paying contribution towards the said workmen, and making deductions from the wages. The workmen had not provided any proof of their employment with HHEC, and the burden was on workmen. Petitioner had never terminated their services, since they were never employees of the petitioner. Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 8 of 46 (iii) The impugned award in reference to issue no.2 had noted that, neither the copy of agreement nor documents relating to payments made by petitioner to the contractor towards the wage of workmen had been placed on record. To the contrary, documents filed by workmen with bank passbooks and attendance register, would stand to prove that they were, from the time of engagement till termination, under the supervision and control of the officers and had discharged duties continuously for more than 240 days a year. To this, counsel for petitioner only doubted the evidence by way of affidavit filed by the petitioner, which stated in paragraph 6 that the agreement dated 26th February 1990 had been executed between petitioner and M/s Clothes Channel and was appended as Annexure A/1. The question of no evidence being available before the Labour Court was, therefore, incorrect. As regards the bank passbooks, it was contended that they are from 2011 onwards and not from 1977 till 1991, the period for which they were claiming their wages and benefits of employment. As regards the attendance registers, it was also contended that they were of 2011 and they were not of the petitioner. Petitioner's counsel drew attention to the cross-examination of WW-1, Sh. Rehmat Khan, who stated that he did not have authorization to depose on behalf of the workmen. Further, he stated that he had not filed any document to prove that the petitioner had inducted him to work, since no appointment letter had been issued, and the same was the Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 9 of 46 situation with the other workmen as well. It was stated that they did not have any document since the petitioner had provided none despite their demands. WW-1 further stated that there was no advertisement or notification for the job published by petitioner and that there was nothing they could place on record showing that they had made a demand for providing appointment letter, salary document etc. Reference was made to the cross-examination of WW-2, Sh. Bindan Singh who also confirmed that no appointment letter was issued to him and there was no document to prove the alleged termination as well. (iv) Substantially, reliance was placed on the Allahabad High Court order, where the Court noted that there was no specific plea as to exactly when these workmen were appointment and that it was admitted that no appointment letter was ever issued. In paragraphs 14 and 15 of the said decision, the Allahabad High Court held that the Tribunal constituted under the ID Act did not have jurisdiction to adjudicate the dispute and observed that since a period of 26 years had expired, the industrial adjudicator should proceed with all expedition. (v) Petitioner relied upon the following decisions for essentially asserting that since the employer-employee relationship has been asserted by the workmen, burden would be upon them to prove the same. However, in the facts and circumstances, the workmen did Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 10 of 46 not have any documents as categorically and candidly stated by them since the organization has apparently refused to provide them any. However, they had made their assertion in the affidavits or evidence and quite the contrary the petitioner did not produce any evidence to controvert the same nor did the respondent no.19 (M/s. Clothes Channel) appeared in the proceedings nor was any witness summoned by the petitioner in order to state that the money was indeed being paid by the M/s. Clothes Channel and the supervision and control was in favour of the M/s. Clothes Channel. (vi) Counsel for petitioner placed reliance on the decision of the Coordinate Bench of this Court in Sunil Kumar v. State 2024 SCC OnLine Del 2111, states that the burden of proving an employer- employee relationship lies on the person asserting it, and such a relationship must be established through concrete evidence or records, as it is a question of fact determined by the cumulative effect of all material placed before the adjudicatory forum.

23. At this juncture, it is apposite for this Court to understand the jurisprudence behind the principles establishing an employer-employee relationship and upon whom the onus to prove the same lies. The Hon'ble Supreme Court in this regard in the judgment titled Kanpur Electricity Supply Co. Ltd. v. Shamim Mirza, (2009) 1 SCC 20, observed the following: “20. It is trite that the burden to prove that a claimant was in the employment of a particular management, primarily lies on the person who Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 11 of 46 employer-employee claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management.” relationship. It

24. Furthermore, the Coordinate Bench of this Court in Babu Ram v. Govt. (NCT of Delhi), 2018 SCC OnLine Del 7243, observed the following: “8. It is well settled principle of law that the person, who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this regard, the Hon'ble Supreme Court in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N., (2004) 3 SCC 514 has approved the judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Para 48 to 50 of the said judgment reads as under:— “48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, (1973 Lab IC 398) the Kerala High Court held: The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer- employee relationship. Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 12 of 46

49. In Swapan Das Gupta v. First Labour Court of W.B. (1976 Lab IC 202 (Cal)) it has been held: Where as person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.

50. The question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse.” x x x

12. A Single Bench of this Court has held in Automobile Association of Upper India v. PO Labour Court, 2006 LLR 851 that appointment of workman can be proved by producing the appointment letter, written agreement, attendance register, salary register, leave record of ESI or provident fund etc. by the workman. The workman can also call the record from the management. Para 14 and 15 of the said judgment read as under:— “14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, record, deposit of provident contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 13 of 46 caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman. produced. In

15. In the instant case, the workman filed an affidavit by way of evidence on the 29th April, 1993 and closed his evidence. Thus, the only evidence in support of the plea of employment was the self serving affidavit filed by the workman and nothing beyond that to support his claimed plea of service of seven years. In view of the principles laid down by the Supreme Court in Range Officer v. S.T. Hadimani, (2002) 2 SLT 154 such affidavit by itself is wholly insufficient to discharge the burden of proof on the workman.” (vii) In Babu Ram v. Govt. (NCT of Delhi) 2018 SCC OnLine Del 7243, this Court stated that the burden of proving the existence of an employer-employee relationship lies on the person asserting it, and mere self-serving statements (like affidavits) are not sufficient without concrete evidence. Relevant paragraphs are extracted as under:

8. It is well settled principle of law that the person, who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this the case the Hon'ble Supreme Court in regard, Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 14 of 46 of Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N., (2004) 3 SCC 514 has approved the judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Supreme Court

10. The Hon'ble in Shankar Chakravarti (supra) has further held that obligation to lead evidence to establish the allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. In this regard Para 32 of the said judgment is also relevant to mention here, which reads as under:— “32. If such be the duties' and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, if it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a nonexisting contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 15 of 46 entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers Ltd. v. Industrial Tribunal commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary.” (Private) (viii) The Supreme Court in Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N., (2004) 3 SCC 514, held that burden of proving the existence of an employer-employee relationship lies on the person asserting it, and such a determination is a pure question of fact, not to be interfered with by High Courts unless the finding is clearly erroneous or perverse. Relevant paragraphs are extracted as under: “Burden of proof 47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. 48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union [1973 Lab IC 398 : (1973) 1 LLJ 366 (Ker)] the Kerala High Court held : (LAB IC p. 402, para 9) Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 16 of 46 The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer- employee relationship.

49. In Swapan Das Gupta v. First Labour Court of W.B. [1976 Lab IC 202 (Cal)] it has been held : (LAB IC para 10) Where a person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.

50. The question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse.” (emphasis added) (ix) In Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25, the Supreme Court held that the burden of proving 240 days of continuous work in the year preceding termination lies on the workman, and a mere affidavit without supporting evidence is not sufficient to establish this claim. Relevant paragraph is extracted as under: “3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an “industry” or not, though reliance is placed on the Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 17 of 46 Court in State decision Gujarat v. Pratamsingh Narsinh Parmar [(2001) 9 SCC 713 : 2002 SCC (L&S) 269 : JT (2001) 3 SC 326] . In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today.” Submissions on behalf of the respondent

18. Counsel for respondent submitted inter alia as under: (i) Respondent/workman had joined petition on various dates between 1977 and 1990, prior to the agreement between petitioner and M/s Clothes Channel/ respondent no.19 coming into existence. They had worked under direct control and supervision Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 18 of 46 of petitioner in the premises at Noida and got their salary from petitioner. (ii) Respondent/workman had proved their employer-employee relationship by way of an attendance register, and salary drawn. Further, the Labour Inspector had visited the premises of the petitioner on 21st December 1990 and submitted a report, which clearly showed that the appointment of the workman was with the petitioner. (iii) There was no evidence to indicate that the workman had affiliation with M/s Clothes Channel/ respondent no.19 or received the salary from them. The agreement between petitioner and M/s Clothes Channel/respondent no.19 was only a sham or camouflage, as the agreement came much later than the appointment of the workman. (iv) The indicia to assess whether an employer-employee relationship includes the proof of payment of salary directly to the workman, control and supervision on the work, rule for selection and appointment of employees, and the power to take disciplinary action regarding conduct and discipline. Respondent/workman had carried out their duties within the premises of the petitioner and were, therefore, operating under its control and supervision; the salaries were disbursed by the petitioner, and they were terminated by the petitioner, albeit without following the due Signature Not Verified procedure. Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 19 of 46 (v) Petitioner did not take an action during the ex parte proceedings and has now filed the present petition to delay the execution petition. The workmen have been pursuing their rights for 34 years and are yet to receive justice. (vi) The Labour Inspector was never cross-examined (though the petitioner's counsel stated that the Labour Inspector was not a witness. The affidavit was of respondent no.1 and the onus was on the workmen to have called him as a witness). (vii) Counsel for respondent relied on Ajay Singh v. Khacheru & Ors. 2025:INSC:9, wherein it was reiterated that while exercising jurisdiction under Article 226 of the Constitution of India the High Court cannot reappreciate evidence unless the authority has exceeded the jurisdiction or acted perversely. The following paragraphs are relevant in this regard: “17. It is a well-established principle that the High Court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot reappreciate the evidence and arrive at a finding of facts unless the authorities below had either exceeded its jurisdiction or acted perversely. 18. On the said settled proposition of law, we must make reference Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447. The relevant portion thereof reads as under: judgment of this Court “16. … It is well settled that the High Court can set aside or ignore the findings of fact of an Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 20 of 46 appropriate court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the courts below have come or in other words a finding which was perverse in law. This principle is well settled. In D.N. Banerji v. P.R. Mukherjee [(1952) 2 SCC 619] it was laid down by this court that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities. …” (emphasis supplied) 19. The above said proposition of law was reiterated in Shamshad Ahmad v. Tilak Raj Bajaj (2008) 9 SCC 1, wherein it was observed that: “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the in relation to which it exercises territories jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 21 of 46 sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.”

20. Observations similar in nature were made in Krishnanand v. Director of Consolidation (2015) 1 SCC 553, wherein it was held that: “12. The High Court has committed an error in reversing the findings of fact arrived at by the authorities below in coming to the conclusion that there was a partition. No doubt, the High Court did so in exercise of its jurisdiction under Article 226 of the Constitution. It is a settled law that such a jurisdiction cannot be exercised for reappreciating the evidence and arrival of findings of facts unless the authority which passed the impugned order does not have jurisdiction to render the finding or has acted in excess of its jurisdiction or the finding is patently perverse. …” (emphasis added) (viii) Further Balwant Rai Saluja v. Air India Ltd. (2013) 15 SCC 85 was relied upon where it is reiterated that the principle to examine whether the contract between principal employer and contractor is a sham and camouflage is to be tested on two principles which are evident from extract under: Airport “22. In International India v. International Workers' Air Union [(2009) 13 SCC 374: (2010) 1 SCC (L&S) 257], this Court echoed the same view and observed as follows: (SCC p. 388, paras 38-39) Authority Cargo “38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 22 of 46 out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor. 39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.” ………

68. Another important angle is examined by me in relation to the nature of test to be used to determine employment relations between the parties. Classically jurists like Salmond and others while developing the jurisprudence relating to Torts have laid down the test to determine the relationships between “master and servant”. In such situations the predominant test deployed was the test of control and supervision. It is Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 23 of 46 facilitating employer-employee needless to state that post-constitutional jurisprudence in India must no longer be allowing practice of the traditional master and servant relationship but should relationships mediated by constitutional jurisprudence which is relevant to the area of labour law jurisprudence in our country in the interest of maintaining industrial peace and harmony which is in larger public interest. 69. Further there has been considerable discussion in the area of determining the relevant test relating to the jurisprudence of employer-employee relationship. Sometimes, we have fallen back on the old principles of master and servant and quite often when we find that these were not capable of delivering justice to the workers keeping with the principles contained in our Directive Principles of State Policy as enshrined in Part IV of the Constitution, this Court has taken note of this difficult situation and has devised new tests to meet the challenges of the new times. 70. That is why the legal principle has been enunciated Factory from Hussainbhai [Hussainbhai v. Alath Thezhilali Union, (1978) 4 SCC 257 : 1978 SCC (L&S) 506] , M.M.R. Khan [M.M.R. Khan v. Union of India, 1990 Supp SCC 191 : 1990 SCC (L&S) 632 : (1991) 16 ATC 541] and Parimal Chandra Raha [Parimal Chandra Raha v. LIC, 1995 Supp (2) SCC 611 : 1995 SCC (L&S) 983 : (1995) 30 ATC 282] to Harjinder Singh v. Punjab State Warehousing Corpn. [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192 : (2010) 1 SCC (L&S) 1146] establishing the trend of healthy constitutional jurisprudence and its application to labour law keeping in mind the basic feature of the Constitution, namely, to render social justice to the weaker sections of the society as has been held by this Court in Kesavananda Bharati v. State of Court Signature Not Verified Digitally Signed By:MANISH KUMAR Signing Date:29.04.2025 10:22:12 W.P.(C) 6484/2024 Page 24 of 46