Chet Ram v. Presiding Officer, Industrial Tribuna,-cum

CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Anil Shukla, Advocate, for the petitioner. Mr.Mohak Bhadana, Advocate for Mr.Hemant Bassi, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for quashing the impugned Award dated 3.9.2008 (Annexure P-2) wherein the reference has been answered against the petitioner-workman by the Labour Court on the ground that he was not an employee of M/s.M.D.Mitra Industries Ltd., but was an employee of the Contractor M/s. M.K.Universal. Counsel for the petitioner-workman contends that the petitioner was appointed as a security personnel with the respondent-Management on

26.7.1996. He continued as such with the respondent till 24.7.2004 when his services were illegally terminated by the respondent-Management. On a demand notice served on the respondent-Management, when the conciliation proceedings failed, reference was made to the Labour Court for C.W.P.No.7143 of 2009 -2- adjudication of the case. The claim statement was submitted by the petitioner-workman which was responded to by way of reply by the Management wherein they had taken a specific stand that the petitioner- workman was an employee of M/s.M.K.Universal, who was paying wages to the workman and also maintaining the attendance register etc. This contention of the Management was accepted by the Labour Court on the basis of the evidence led by the parties leading to the answering of reference against the petitioner-workman. Counsel contends that M/s M.K.Universal did not possess a licence as mandated under Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the 1970 Act) for doing the work of security. The licence issued by the Government of Haryana to M/s.M.K.Universal, was initially issued on

26.4.2004 which provided as follows:- “This licence is for doing the work of Packing, Labelling, Shifting of Finish Raw Material Moping, Cleaning Dusting etc. in the establishment of Mitra Industries Ltd. 14/4 Delhi Mathura Road Faridabad ( Faridabad ) Haryana This licence shall remain in force till 31.12.2004.” Counsel, on this basis, contends that since there was no valid licence with M/s.M.K.Universal with regard to providing of security personnel, the findings as recorded by the Labour Court cannot be sustained and deserves to be set aside. His further contention is that as per the provisions of Section 12 of the 1970 Act, the petitioner would be, for all C.W.P.No.7143 of 2009 -3- intents and purposes, treated as an employee of the principal employer i.e. M/s. Mitra Industries-respondent No.2. Counsel for the petitioner relies upon a Division Bench judgment of the Madras High Court in the case of The Workmen of Best & Crompton Industries Ltd. vs. The Management of Best & Crompton Engineering Ltd. and others 1985 (1) LLJ 492. He, on this basis, contends that the present writ petition deserves to be allowed and the impugned Award be set aside entitling and granting the benefit to the petitioner for reinstatement in service with all consequential benefits. On the other hand, counsel for the respondent has not been able to rebut the contention as has been raised by the counsel for the petitioner. He, however, states that the reinstatement in service with all consequential benefits be not granted to the petitioner as it has been a long drawn litigation between the parties which has created bad blood between them and, therefore, he should not be granted reinstatement in service rather some compensation may be granted to him. He relies upon the judgment of the Hon'ble Supreme Court in the case of K.C.Sharma vs. Delhi Stock Exchange and others, (2005) 4 SCC 4 in support of this contention. I have heard counsel for the parties and have gone through the records of the case. In view of the categoric stand of the counsel for the petitioner that M/s.M.K.Universal was not holding a valid contract as mandated under Section 12 of the 1970 Act with regard to providing of personnel on security duty which factum has not been disputed by the counsel for the respondent, the inevitable consequence of such a position would be violation of Section 12 of the 1970 Act and the Division Bench judgment of the Madras High Court would be fully applicable to the present C.W.P.No.7143 of 2009 -4- case. Accordingly, the termination of the services of the petitioner cannot be said to be in accordance with law as the only stand taken by the respondent-Management before the Labour Court was that M/s.Mitra Industries Ltd. was not the employer of the petitioner. No reasons for terminating the services of the workman were really spelt out by the Management. The factum of the workman being appointed on 26.7.1996 to

24.7.2004 with M/s.Mitra Industries has also not been disputed by the counsel for the respondent in this Court. In the light of Section 12 of the 1970 Act, the only consequence thereof is that the petitioner would be the employee of the principal employer i.e. the respondent-Management. Accordingly, the present writ petition deserves to be allowed. As regards the contention of the counsel for the respondent that the reinstatement of the workman be not granted due to a long lapse of period and instead of reinstatement, he be granted compensation and his reliance on the judgment of the Hon'ble Supreme Court in K.C.Sharma's case (supra) is not acceptable. It is not the case of the respondent- Management that there was any misconduct on the part of the petitioner or there was lack or loss of confidence on the petitioner. The judgment which has been relied upon by the counsel for the respondent, when taken into consideration, spells out that there were serious charges of misconduct against the workman and when those were considered by the Hon'ble Supreme Court, it had come to a conclusion that instead of granting reinstatement and back wages, compensation may be granted to him. The situation is not the same in the present case and merely because there is a delay on the part of the Labour Court in deciding the matter, the workman C.W.P.No.7143 of 2009 -5- cannot be deprived of his right of reinstatement with all consequential benefits for his termination which is not in accordance with law. Nothing has been brought on record on behalf of the respondents which would suggest that the petitioner was engaged in any alternative employment. In view of the totality of the facts and circumstances of the case, it would be just and appropriate that the petitioner be granted 70% of the back wages from the date of demand notice till the date of reinstatement. Accordingly, the present writ petition is allowed; the impugned Award dated 3.9.2008 (Annexure P-2) passed by the Industrial Tribunal- cum-Labour Court-I, Faridabad is hereby set aside. It is held that the petitioner is an employee of the respondent-Management and his termination was not in consonance with law and, thus, he is held entitled to reinstatement in service with all consequential benefits and 70% back wages from the date of his demand notice. March 25, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE