The Management of Micro LabPrivate Limited v. The Presiding Officer, Labour Court, Vellore-4.2.P.N.Suseela

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.11.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALWRIT APPEAL NO.2384/2002The Management of Micro LabPrivate Limited,92, SIPCOT, Hosur 635 125.Dharmapuri District... Appellant/Petitioner in WP.28975/94.Vs1.The Presiding Officer, Labour Court, Vellore-4.2.P.N.Suseela ..Respondents/Respondents inWP.28975/94.Appeal filed under section 15 of Letters Patent against the orderpassed by the learned Single Judge dated 20.06.2002 in W.P.No.20975of 1994 - Writ Petition filed under Article 226 of the Constitutionof India, praying to issue a Writ of Certiorari calling for therecords from the file of the Labour Court, Vellore 4, the firstrespondent herein in I.D.No.206 of 1992 and quash the award passedtherein dated 7.1.1994.For Appellant:Mr.V.Karthick forM/s.T.S.GopalanFor Respondents:M/s.S.Girija for R2R1:Labour CourtJUDGMENTM.VENUGOPAL, J.The appellant in the writ appeal is the petitioner inW.P.No.20975 of 1994 and respondent in I.D.No.212 of 1989 before theLabour Court, Coimbatore, and the same was transferred to LabourCourt, Vellore, the first respondent herein. The second respondentherein is the petitioner before the Labour Court, filing a claimpetition praying to pass an award treating the action of theManagement for terminating her from service as illegal, void and in- https://hcservices.ecourts.gov.in/hcservices/ operative and resultantly ordering for her reinstatement withcontinuity of service and full backwages with all other benefits.The second respondent/petitioner before the Labour Court took a standin I.D.No.212 of 1989 that she was working only as a regular workerand not as a contractor as claimed before the Conciliation Officer bythe appellant/Management and that she was working along with allother workmen and it was purely with employer-employee relationship.2.It is the further stand of the second respondent/employee thateven if the employer called her as a contractor and other workersengaged by her as contract workers, to avoid liability under variousstatutory provisions of law, she was termed as contractor and thattoo, only after raising the dispute and that there was no license forengaging contract labour or firm was not registered under section VIIof Contract Labout [Regulation and Abolition] Act. 3.The appellant/respondent filed a counter stating that it wasan utter falsehood that the second respondent/employee was working asonly a regular worker and not as contractor as mentioned beforeConciliation Officer by the respondent and further it was also falseto state that the second respondent/petitioner/employee was alsoworking along with all other workmen and it was purely with theemployer and employee relationship. In the counter to the claimpetition before the Labour Court, Coimbatore, theappellant/Management, inter-alia, averred that the secondrespondent/employee was engaged as a contractor to supply labour tothe appellant/Management and that she made an application for licencethrough her letter dated 24.12.1987 to the Inspector of Factories,Dharmapuri [competent authority] under the Contract Labour[Regulation and Abolition] Act and that there was a contract betweensecond respondent/employee and the appellant/Management for supplyinglabour to the Management and she was engaged as a contractor witheffect from 01.01.1988 and that the second respondent/employeestarted exploiting the labourers working under her and she failed tofollow the procedure on the maintenance of records and also violatedthe provisions of the Contract Labour Act and therefore, theappellant/Management terminated the contract with effect from30.06.1988.4.Learned counsel for the appellant contends that the firstrespondent/Labour Court had erred in coming to the conclusion thatmerely because the second respondent/employee was covered under theEmployees’ Provident Funds and Miscellaneous Provisions Act, 1952 andtime card was issued under Factories Act, she would be a worker inthe service of the appellant and that the first respondents/LabourCourt failed to appreciate that under the provisions of theEmployees’ Provident Fund and Miscellaneous Provisions Act,Employees’ State Insurance Act and the Factories Act, both thecontractor and his workmen working in the premises of the Principalemployer have to be covered. But by mere reference to the coverage, https://hcservices.ecourts.gov.in/hcservices/ one cannot come to the conclusion that they were employed in theservice of Principal employer and therefore, prayed for allowing thewrit appeal and to set aside the orders passed by the learned SingleJudge in W.P.No.20975 of 1994 dated 20.06.2002.5.According to learned counsel for the appellant/Management,Ex.W-5-1988 Agreement and Ex.W-6-Cancellation of the Agreement dated26.08.1988, would go to show that the second respondent/employee wasonly a contractor and not a worker under the service of theappellant. The first respondent/Presiding Officer, after analyzingthe evidence of WW.1-Suseela and on examination of exhibits W.1 toW.7 and M.1 to M.5 and on considering the available materials record,came to the definite conclusion that that the secondrespondent/employee was working in the Packing Division of theManagement and not as a contract labour and even if she had worked asa contract labour, did the work and could have also done it throughcontract workmen and even then, she would be a workman of theestablishment and passed an award holding that her termination wasunjustified and ordered for reinstatement with backwages andcontinuity in service. The time card, Ex.W.4 was issued in favour ofthe second respondent/employee. Exs.W.1 and W.2 relate to the period1985-86 and 1986-87 pertaining to the Provident Fund slips. Onlybecause of the fact that the second respondent/employee was anemployee of the appellant/Management, the appellant/Management hascontributed their part towards provident fund on her behalf. If thesecond respondent/employee was only a contract labour, then there wasno occasion for the second respondent/employee to have contribute hercontribution. In general practice, the regular workers are issuedthe time card. The second respondent/employee supplied labour to theappellant/Management as per the contract.6.There is no fetter for an individual to be a workman and toapply for a license under the Contract Labour [Regulation andAbolition] Act, 1970, in our considered opinion. It is not indispute that no license was issued to the second respondent/employeewith regard to her application-Ex.M.1 dated 24.12.1987 by the ChiefInspector of Factories. 7.It is pertinent to point out that a contractor can extract thework through the labour and she could serve the Management/employerin her capacity as worker. Learned counsel for theappellant/Management referred to the relevant portion of Section 2[9]of the Employees State Insurance Act, 1948 which defines ‘employee’as:“[9]”employee” means any person employed for wages inor in connection with the work of a factory orestablishment to which this Act applies and-[i]who is directly employed by theprincipal employer on any work of, or https://hcservices.ecourts.gov.in/hcservices/ incidental or preliminary to or connected withthe work of, the factory or establishment,whether such work is done by the employee inthe factory or establishment or elsewhere; or[ii]who is employed by or through animmediate employer on the premises of thefactor or establishment or under thesupervision of the principal employer or hisagent on work which is ordinarily part of thework of the factor or establishment or which ispreliminary to the work carried on in orincidental to the purpose of the factory orestablishment; or[iii]whose services are temporarily lent orlet on hire to the principal employer by theperson with whom the person whose services areso lent or let on hire has entered into acontract of service; and includes any personemployed for wages on any work connected withthe administration of the factory orestablishment or any part, department or branchthereof or with the purchase of raw materialsfor, or the distribution or sale of theproducts of, the factory or establishment.”and also to section 39[1] of the said Act which refers to thecontribution payable under this Act in respect of an employee shallcomprise contribution payable by the employer [hereinafter referredto as the employer’s contribution] and contribution payable by theemployee [hereinafter referred to as the employee’s contribution] andshall be paid to the Corporation…”8.Learned counsel for the appellant/Management also placedreliance on the definition ‘employee’ under section 2[f] of theEmployees’ Provident Fund and Miscellaneous Provisions Act, 1952,wherein it is defined as follows:“[f]’employee’ means any person who is employedfor wages in any kind of work, manual or otherwise,in or in connection with the work of [anestablishment] and who gets his wages directly orindirectly from the employer, [and includes anyperson,-[i]employed by or through a contractor in or inconnection with the work of the establishment;[ii]engaged as an apprentice, not being anapprentice engaged under the Apprentices Act, https://hcservices.ecourts.gov.in/hcservices/ 1961 [52 of 1961] or under the standing ordersof the establishment].”9.He also cited section 30 of the Employees Provident FundScheme, 1952, wherein it is observed as follows:-“30.PAYMENT OF CONTRIBUTION:-[1]The employer shall, in the first instance, payboth the contribution payable by himself [in thissection referred to as the employer’s contribution]and also, on behalf of the member employed by himdirectly or by or through a contractor, thecontribution payable by such member [in the Schemereferred to as the member’s contribution].[2]In respect of employees employed by or through acontractor, the contractor shall recover thecontribution payable by such employee [in the schemereferred to as the member’s contribution] and shallpay to the principal employer the amount of member’scontribution so deducted together with an equalamount of contribution [in this scheme referred to asthe employer’s contribution] and also administrativecharges.[3]It shall be the responsibility of the principalemployer to pay both the contribution payable byhimself in respect of the employees directly employedby him and also in respect of the employees employedby or through a contractor and also administrativecharges.Explanation:For the purposes of this paragraph theexpression “administrative charges” means suchpercentage of the pay [basic wages, dearnessallowance, retaining allowance, if any, and cashvalue of food concessions admissible thereon] for thetime being payable to the employees other than anexcluded employee, and in respect of which providentfund contributions are payable as the CentralGovernment may, in consultation with the CentralBoard and having regard to the resources of the Fundfor meeting its normal administrative expenses, fix.]”10.Learned counsel for the appellant/Management referred tosection 2[l] of the Factories Act, 1948 which defines 'worker' asfollows:-"2[l]'Worker' means a person [employed directly or byor through any agency [including a contractor] withor without the knowledge of the principal employer, https://hcservices.ecourts.gov.in/hcservices/ whether for remuneration or not] in any manufacturingprocess, or in cleaning any part of the machinery orpremises used for a manufacturing process, or in anyother kind of work incidental to, or connected with,the manufacturing process, or the subject of themanufacturing process, [but does not include anymember of the armed forces of the Union]."11.As a matter of fact, the second respondent/employee before hertermination, was in service for a period from 1985-1987. As far asthe present case is concerned, the ESI card, the time card and theProvident Fund slips in favour of the second respondent/employeewould go to prove that the second respondent/employee was working asa regular worker and therefore, she comes clearly within the ambitand definition of ‘workman’ as per section 2[s] of the IndustrialDisputes Act, 1947, in our considered opinion. Though the secondrespondent/employee claims that she entered into the service of theappellant/Management from 21.06.1983 in the Packing Department, theProvident Slips filed on her behalf as Exs.W-1 and W-2 refer to 1985-86 and 1986-87 and certainly these documents are in her favour andstrongly support her case, in our opinion.12.The finding given by the Labour Court in its award dated07.01.1994 in labour dispute case in ID No.206 of 1992 and thefinding given by the learned Single Judge in W.P.No.20975 of 1994order dated 20.06.2002 that the second respondent/employee was aworkman, is a concurrent finding, the factual aspect of which cannotbe interfered with by us.13.The definition of ‘employee’ as found in section 2[f] of theEmployees’ Provident Fund and Miscellaneous Provisions Act, 1952 andthe definition ‘employee’ as per section 2[9] of the ESI Act aredifferent from that of the definition ‘workman’ as seen from section2[s] of the Industrial Disputes Act, 1947. In fact, the definitionof Workman as per section 2[s] of the Industrial Disputes Act operateon a different field and that the definition is very vide.14.In this case, learned counsel for the appellant/ Managementcontends that an interim application in IA.No.612 of 1993 inID.No.206 of 1992 was filed before the first respondent/Labour Courtby the appellant/Management to reopen the case and to send for thedocuments from the Office of the Inspector of Factories, Dharmapuripertaining to the file of second respondent/employee/contractor ofthe appellant-Company for the period from 01.01.1988 to 31.12.1988and the application dated 24.12.1987 was filed for issue of licensein file No.13.3790/88 dated 25.05.1988 and that the said applicationwas dismissed by the Labour Court, Vellore as highly belated and thiswas taken as one of the grounds in the appeal. At this juncture, itis quite pertinent to point out that in the present case on hand, inour view, there was employer-employee or Master and Servant https://hcservices.ecourts.gov.in/hcservices/ relationship between the appellant/Management and the secondrespondent/employee, more so, when the second respondent/petitionerworked in the Packing division as an employee. Even though theappellant/Management takes a stand that earlier they filed anapplication to send for the documents from the office of theInspector of Factories, Dharmapuri and the said application was notordered, as averred in IA.No.89/1993 before the firstrespondent/Labour Court, we are of the opinion that this will not inanyway help the case of the appellant/Management any further.Further more, the dismissal of the IA.No.89/1993 on 02.12.1993 willnot also enure to the benefits of the appellant/Management.15.In the present case, it also transpires that I.A.No.612 of1994 was filed before the first respondent/Labour Court to review theaward passed by it on 07.01.1994 by reopening the case and forsending of documents from the Inspector of Factories, Dharmapuri andto permit the appellant/Management to let in evidence on their behalfand an order was passed on 08.09.1994 by the Labour that the awardwas passed already and the Court cannot sit in Judgment over thepropriety of the order passed by the earlier Presiding Officer andrevoke his award and that review was only to correct any opportunityor mistake on the face of the Judgment or award passed and there wasno question of reopening their case and permitting the party toadduce further evidence and if possible, to reverse the Judgmentunder the question of review. The first respondent/Labour Court,Vellore passed an award on 07.01.1994 in ID.No.206/1992.16.We are of the view that under section 2[A] of the IndustrialAct, remedy is available only when a workman is dismissed, dischargedor terminated. We also opine that the object of the IndustrialDisputes Act is to protect workman whose services have beencontinuously engaged for a considerable period of time. 17.Looking at the matter from any angle and in the light of ourdiscussions mentioned supra, we are of the considered view that thesecond respondent/employee was a workman coming within the purview ofthe definition of ‘workman’ under section 2[s] of the IndustrialDisputes Act, 1947 and in the instant case, the relationship of theemployer-employee or Master and Servant relationship was establishedclearly and therefore, the concurrent finding of fact by the firstrespondent/Labour Court, Vellore in its award dated 07.01.1994 andthat of the learned Single Judge in W.P.No.20975/1994 dated20.06.2002 are affirmed and cannot be interfered with andconsequently, the writ appeal fails and the same is dismissed in https://hcservices.ecourts.gov.in/hcservices/ furtherance of substantial cause of justice. However, there shall beno order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ApToThe Presiding Officer, Labour Court,Vellore.+ 1 CC To Mr. T.S.Gopalan & Co. Advocate SR NO.70841Writ Appeal No.2384/2002msm[co]gp/7.12.