NARINDER KUMAR v. INDUSTRIAL TRIBUNAL-CUM-LABOUR

CORAM: HON'BLE MS. JUSTICE KIRTI SINGH Present: Mr. Anil Shukla, Advocate, for the petitioner. **** KIRTI SINGH, J. (ORAL) 1) The challenge in the present writ petition is to the award dated

01.08.2013 (Annexure P-3) passed by the Industrial Tribunal-cum-Labour Court, Faridabad, whereby the reference has been answered against the petitioner-workman. The petitioner seeks quashing of the impugned award and a direction for reinstatement with continuity of service and all consequential benefits. 2) Learned counsel for the petitioner inter alia submits that the Labour Court has failed to appreciate that the petitioner had in fact been working with respondent No.2 since the year 1995 as a Hydraulic Machine Operator, and that the submissions with regard to the role of respondent No.3 were made only to avoid the liability of employer-employee CWP-18725-2016 -2- relationship. The contract between respondents No.2 and 3 was sham, and that the evidence of MW-1 itself established that no agreement for supply of manpower, no licence and no permission under the Contract Labour (Regulation and Abolition) Act were produced. It is further submitted that the petitioner worked under the direct supervision and control of respondent No.2 and, therefore, ought to have been treated as its employee. The award, therefore, is contrary to the evidence on record and deserves to be set aside. 3) I have heard learned counsel for the petitioner and have gone through the paper book as well as the impugned award. 4) Reference can also be made to the explanation of the relevant provisions, as made by the Hon’ble Supreme Court in Surendranagar District Panchayat v. Dahyabhai Amarsinh, 2005(8) SCC 750, which reads thus:- “xxxx To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub-Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section(1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the CWP-18725-2016 -3- days specified in clause (a) and (b) of Sub-section (2). By the legal fiction of Sub-section 2(a) (i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.” 5) Reverting to the case in hand, the Labour Court, after examining the entire evidence on record, returned the finding that the petitioner had himself admitted that ESI and Provident Fund documents had been issued showing him to be an employee of respondent No.3; and that despite alleging that such documents had been obtained by fraud, the petitioner did not lead any cogent evidence to establish that he was, in fact, an employee of respondent No.2. The Labour Court rightly held that the primary burden to establish the employer-employee relationship rested upon the petitioner, which he failed to discharge. The Labour Court also observed that though respondent No.3 had consistently pleaded that the petitioner had wilfully remained absent from duty since 22.10.2004, but the department was willing to take him back in service. However, during his cross-examination, the petitioner categorically stated that he was not willing to work under the contractor. 6) Another significant circumstance noticed by the Labour Court was that the petitioner did not seek or summon any record from respondent No.2 to substantiate his assertion that he was appointed, paid wages and supervised as its employee. Therefore, in the absence of any cogent and reliable evidence establishing the employer-employee relationship, the Labour Court found that the self-serving testimony of the petitioner was insufficient to dislodge the documentary material indicating that he was in CWP-18725-2016 -4- fact an employee of respondent No.3. Such finding is based upon appreciation of evidence and cannot be said to be either perverse or unsupported by the material available on record. 7) It is well settled that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not act as an appellate Court over the findings recorded by the Labour Court. Interference is warranted only where the findings suffer from patent illegality, perversity or are based on no evidence. Mere possibility of another view on the evidence is not a ground to upset the findings of the Labour Court. 8) In the present case, the findings recorded by the Labour Court are based upon appreciation of the pleadings and evidence led by the parties. Learned counsel for the petitioner has been unable to demonstrate that the impugned award suffers from any jurisdictional error, perversity or manifest illegality warranting interference in exercise of the extraordinary writ jurisdiction of this Court. 9) Accordingly, finding no merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.

21.07.2026 SwarnjitS Whether speaking/reasoned Whether reportable : : Yes/No Yes/No (KIRTI SINGH) JUDGE