High Court
Legal Reasoning
(6)wp12349.219.There is no dispute that the present respondentswere working in the hotel run by the petitioner. Their duty chartand other record is maintained by the hotel and same isproduced on record. This fact is also not disputed thatcontractor was examined by the petitioner and his evidence isalso on record. It is, therefore, the case of the petitioner thatrecord was maintained only for the purpose of hotel. Work wasgiven by the hotel as per requirement. Duty of the contractor isonly to supply the labours. How to get the work from the saidworkmen is for the management. The court has clearly held thatthe contractor was shown as camouflages by considering theevidence. So far as not making contractor as party depends uponthe answer, as to whether it is established that the workmenwere engaged through the contractor.10.So far as delay and latches are concerned, this courtneed not go into the said question as the court is considering thematter on merits. The respondents during the course of the trialhave produced on record logbooks. In the logbook the names of6 of 16 (7)wp12349.21employees working in the hotel are mentioned which includingthe names of the respondents. From the examination of thewitness for the petitioner, it is tried to be shown i.e. RameshTathe was working with the petitioner. In the cross by therespondents, he has stated the procedure of his selection. Healso stated that work was of similar in nature of regularemployees. He has specifically stated that the persons from themanagement of the petitioner interviewed the employees. In thecross, it is only asked about the ESIC Contribution etc to whichthis witness shown ignorance. He denied resignation letter asalleged by the petitioner. He admitted a letter dated 31-03-2001.This is allegedly a resignation letter. This court finds that thisevidence is sufficient to hold that the employees were workingin the hotel and doing the work of regular and permanentnature. His evidence coupled with the logbook would clearlyestablish that the respondents were directly working undercontrol of petition. This court does not find any substance in thesubmission that the logbook would only show that work done bythe persons. So far as license with the contractor is concerned, it7 of 16 (8)wp12349.21is shown that he was not possessing the valid license. So far asthe argument of the Mr. Prabhakaran for the respondents areconcerned this court has considered the definition given insection 2 (a) and 2(k) of the Industrial Dispute Act. 11.This court further finds that other submissions to becorrect that employees would go to the conciliation officer and itis thereafter for said authority to refer the dispute. It is alsoestablished from the record that employees were working evenprior to engaging the contractor. It is seen that contractor couldnot answer various questions. no contract between contactorand the hotel and the petitioner is on record. When this is theposition, this court finds that it is difficult to accept thatrespondents were contract labours. From the cross-examinationof the witness Patil it is seen that he could not state anything.12.This court proceeded to consider the judgmentsrelied upon by the parties.8 of 16 (9)wp12349.2113.The learned Senior Advocate Mr. Bapat for thepetitioner relied upon the judgment in the case of Tata Iron andSteel Company Ltd Vs State of Jharkhand and others1. In thesaid case it is stated that the employees were initially employedby the company in its cement division. Said cement division wasthereafter sold to another company. It is submitted that theworkmen thereafter would become workmen of the subsequentcompany. In the said matter notices were issued to participate inthe conciliation proceedings. No settlement could take placeresulting conciliation proceeding into failure. A report wastherefore sent to the labour department. The reference hadarisen out of that and dispute was referred to the labour courtunder section 10(1) of the Industrial Dispute Act by referringdispute. The petitioner approached the High Court by filing thewrit petition under Article 226 of the Constitution of India andchallenged the notification of the reference. It was pre-takenthat the real dispute about existence or otherwise of the had notbeen referred. It is held that jurisdiction of the tribunal would belimited to the extent of what is referred to it. As the Industrial1(2014) 1 SCC 5369 of 16 (10)wp12349.21Dispute/Labour Court constituted under the Act are thecreatures of the statute. They acquired jurisdiction on the basisof reference made to it and therefore, courts have to confineditself within the scope of the subject matter of the reference.Ultimately, it was held that reference in that matter was clearlydefective, as it was without taking care of the correct and precisenature. This court finds that no such case is made out and it isadmitted fact that the employees were interviewed by the ChiefEngineer of the petitioner and were given the work. In view ofabove factual position, this court is of the opinion that thisjudgment is not applicable to the present case.14.In the case of Municipal Corporation of GreaterMumbai VS K. V. Shramik Sangh and others 2 the Hon’ble ApexCourt considered that it is the duty of the Municipal Corporationto keep the city clean, free of garbage and rubbish, refuse etc.The High Court in that case also took a view if the corporationchooses to employ some other agencies to discharge itsobligation, it could do so provided it is consistent with the2(2002) 2 HCC (Bom) 19610 of 16 (11)wp12349.21applicable legal provisions. High Court had held contract to becamouflage. On this background the Hon’ble Apex courtconsidered the validity and correctness of the judgment of theHigh court. In that case The Hon’ble Apex Court considered thatthe High Court did not go into the question and no findingswere recorded that the labour contract was sham or camouflage.15.Considering the material on record it was taken tothe serious and disputed facts in terms of the constitution whenthe judgment in the case of Steel Authority of India Ltd. andohters Vs National Union Waterfront Workers and others3.However, these observations were made in the facts of that case.16.In the case of Balwant Rai Saluja VS Air India Ltd.4the question was of employer employees relationship anddetermination of the existence of the said relationship. TheHon’ble Apex Court considered the tests to be applied toascertain the complete administrative control over the3(2001) 7 SCC 14(2014) 9 SCC 40711 of 16 (12)wp12349.21employees. Such tests were discussed as to who appoints theworkers and who pays the salary, who has the authority todismiss, who can take disciplinary action, whether there iscontinuity of service and the extent of control and supervision.From the facts in the present case on record during the trial, it isseen that for all practical purposes the complete control on theemployees was of the petitioner as said is clear from the factsthat the register is maintained by the petitioner. The work wasassigned by the petitioner. The employees were selected by theengineer of the petitioner company. It has specifically come onrecord that the contractor who was shown to have been engagedhad no knowledge of the exact nature. The trial court has rightlyinferred from the evidence that the contractor was onlycamouflage. This finding is recorded on the basis of materialbefore the court. This court does not find any perversity in thefindings recorded on that issue.17.In the case of General Manager (OSD), Bengal,Nagpur Cotton Mills, Rajnandgaon Vs Bharat Lal and another5 it5(2011) 1 SCC 63512 of 16 (13)wp12349.21was held that negative onus cannot be put on the employer toprove the fact as to who paid the salary. It is for the employee toprove that the salary was directly paid by the principal employerand not by the contractor. In that case employees failed todischarge this onus. In that case employees could not establishthat he was working under the direct control of the Principalemployer. In the present case there is sufficient evidence to showthat employees were controlled by the petitioner employer. Noperversity is seen in the findings recorded by the trial court. Inview of the clear finding on the issue of the direct control andsupervision by the petitioner this judgment is of no use. 18.The learned advocate for the respondents relies uponthe judgment in the case of Hussainbhai Calicut Vs Alath FactoryThezhilali Union6. In the said case the Hon’ble Apex Courtconsidered the relationship of the employer and employee. It isheld that absence of direct relationship or the presence ofdubious intermediaries cannot snap the real life bond. It is heldthat liability of the employer cannot be shaken off. In the61978 (7) CPSC 17613 of 16 (14)wp12349.21judgment of the Secretary HSEB Vs Suresh7 also question ofrelationship was considered. The Hon’ble Apex Court consideredthat the purpose of the social and beneficial piece of legislation.In the case of Dina Nath Vs National Fertilizers Ltd 8 it was heldthat the contractor was a mere name lender and it procure thelabour from the open market. The contractor in that case washeld to be broker or agent of the employer.19.In the case of General Manager (P & A) HindustanPetroleum Corporation Ltd Vs General Secretary GeneralEmployees Association9, the Hon’ble Apex Court considered thatthe witness admitted that the after completion of the work ofthe workers certificate to that effect was issued by theManagerial persons of the company. In that case alsoresponsibility to make payment of wages, PF, contribution andetc was upon the contractors. That the management was incontrol and was supervising work of the workmen. Ultimately itwas held that it is the management who was making thepayment. Though there was change in the contractors, like inthe present case, workmen were not replaced nor freshappointment were made. It was thus held that there was direct72010 (3) CPMH 3868(1992) 1 SCC 69592010 (3) CPMH 3814 of 16
Arguments
(1)wp12349.21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12349 OF 2021 WITH CA/4643/2024INDIAN HOTELS CO. LTD TAJ VIVANTA, (EARSTWHILE HOTELTAJ RESIDENCY) PLOT NO. 8, N-12, CIDCO, JALGAON ROAD,AURANGABADVSRAMESH BHAUSAHEB TATHE AND OTHERSMr. Kiran Bapat, Senior Advocate h/f Mr. Y. R. Marlapalle,Advocate for the petitioner Mr. T. K. Prabhakaran, Advocate for the respondent Nos. 1 to 8,4-a to 4-cCORAM:KISHORE C. SANT, J.RESERVED ON:11th MARCH, 2025PRONOUNCED ON:06th May, 2025P. C. 1. This petition is directed against the judgment andaward in Reference (IDA 25/2006) passed by the learned Judge,Labour Court (II), Aurangabad dated 27-03-2015. By way ofimpugned judgment and award, the learned Judge has set asidethe oral termination order dated 15-12-2001 terminating theservice of the respondents. It is further directed to reinstate thesecond party workmen with continuity in service and full1 of 16 (2)wp12349.21backwages from 15-12-2001 and also to pay Rs.20,000/- to thesecond party towards cost of the reference.2.The petitioner is the first party in the said reference.The respondents are the second party Workmen.3.The facts in short are that, the petitioner is in thehotel business and runs hotel at Chhatrapati Sambhajinagar[Aurangabad]. The respondents were working in the saidestablishment. It is alleged by the respondents that though theywere enlisted by the petitioner, their services were orallyterminated by the petitioner and thus they had to approach theauthorities. The government thereafter referred the dispute byorder dated 09-05-2006.4.It is the case of the petitioner that all these workmenwere engaged through contractor. They were never employed bythe petitioner, and as such they do not have any right to claimpermanency and to challenge alleged termination. The learned2 of 16 (3)wp12349.21trial Judge however held that the workmen proved relationshipas employer and employee. It is held that the petitioner failed toprove that workmen were employed by the contractor, the saidissue was answered in negative. Consequently it is held that oraltermination was illegal and therefore, workmen are entitled toreinstatement with full backwages and continuity of service withconsequential benefits.5.The main argument of the petitioner is that there isno employer employee relationship between the petitioner andworkmen-respondents. The respondents were employed throughcontractors. Since there is no relationship, there is no questionof termination. The award passed by the learned judge, is thus,not legal and correct. The question in view of rival submissionsmade before this court is thus, mainly as to whether therespondents workmen are employees of the petitioner orwhether they were contract labours as contended by thepetitioner. The parties mainly argued on this point.3 of 16 (4)wp12349.216.The learned Senior Advocate Mr. Bapat h/f Mr.Marlapalle, learned advocate for the petitioner vehementlyargued that all the workmen were supplied by the LabourContractor namely M/s. Sagar Enterprises and M/s AurangabdMulti Services. Both the contractors are not joined asrespondents. The reference was thus bad for non-rejoinder ofthe necessary parties. The evidence of the parties was notproperly appreciated. There was no direct evidence showing thatthe respondents were appointed by the petitioner. Though thereis muster-roll/ duty register on record, it is maintained only forthe purpose of convenience by the petitioner. That itself is notsufficient to come to conclusion that there is relationship ofemployer and employee between the parties. The learnedreference court has wrongly put burden to prove the negativefact on the petitioner to prove that respondents are notemployees of the petitioner while referring the parties to theLabour court / it was necessary to even add the contractor asparty. Finding that contract was camouflage and bogus iswithout any material /evidence on record. He, thus, submits that4 of 16 (5)wp12349.21the impugned judgment and award deserves to be quashed andset aside. He submits that basic question was not considered bythe court.7.Learned advocate for the respondents Mr.Prabhakaran vehemently argued that there is delay and latchesin filing the writ petition. The petition be dismissed on thatcount alone. He further submits that trial court has rightly cometo a conclusion and held that relationship between the parties isestablished. He further submits that maintaining the record likemuster-roll, duty chart, etc clearly shows that workmen weredirect employees of the petitioner. He took this court throughthe definition in section 2-a and 2-k of the Industrial DisputeAct.8.Both the parties have taken this court through theevidence. Judgments cited will be discussed in forgoingparagraphs.5 of 16
Decision
(15)wp12349.21relationship. The workers were working for very long period inthe establishment of the petitioner. Thus looking from this anglethis court finds that case of the General Manager (P & A)Hindustan Petroleum Corporation Ltd (supra) covers the presentcase. There is no doubt that the petitioner was controlling andsupervising the work of the petitioner. Contractor was nominalfor making only payment through him. Thus, it is clear that forall the purposes it is the petitioner who had employed therespondents as workmen. Workers were working for long period.20.Considering all above, the responsibility of thecontractor was only to make the payment. Thus, this court hasno hesitation in holding that case is established by therespondents. This court does not find any perversity or illegalityin the judgment passed by the trial court. Hence, the petitiondeserves to be dismissed and same is hereby dismissed. No orderas to costs.21.In view of dismissal of the writ petition, the civilapplication stands disposed off. [KISHORE C. SANT, J.]15 of 16 (16)wp12349.21Later on:1.1. At this stage, the learned advocate forthe petitioner prays for continuation of interim relief for aperiod of six weeks from today.2.The learned advocate for the respondent has strongobjection for continuation of interim relief.3.However, since already there is interim relief, sameshall be continued for a period of six weeks from today.[KISHORE C. SANT, J.]VishalK/wp12349.2116 of 16