Civil Writ Petition No. 13187 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 13187 of 2011 Date of decision:-27.7.2011 Bharat Sanchar Nigam Ltd. ...Petitioner Versus Sh. Bhurumal and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Madan Mohan, Advocate for the petitioner. RITU BAHRI J. Challenge is to the Labour Court award dated 11.4.2011 (Annexure P-6) whereby the petitioner has challenged the Award on the ground that the respondent No.1 was employed by a contractor and the petitioner was not directly involved in release of salary in other service commitments. Respondent No.1 was engaged as daily wage lineman w.e.f. 1.7.1987. His services were terminated on 27.4.2002. Neither any show cause notice was served upon respondent No.1 nor any inquiry was held. No retrench compensation was paid. He raised a demand notice to file his claim statement (Annexure P-2) before the Labour Court. In his claim statement his precise grievance is that he has worked for 15 years under the respondent-BSNL, Sonipat (Haryana) w.e.f. July 1987 till April 2002. On 17.11.2001 when the workman was on duty at 11 AM and repairing the fault of telephone No.65033, he met with an accident. He was climbing of a phone pole and 11000 volts electric line was going over the telephone pole and an electric current was caused to the workman and because of that the workman became unconscious Civil Writ Petition No. 13187 of 2011 -2- and his right hip and right little finger were broken. He was shifted to Dr. Sethi Hospital on 18.11.2001 and on 19.11.2001 he was referred to the Medical College, Rohtak. Appropriate help was given by Jatinder Kumar, SDO and Manjit Singh JTO to the workman and he was assured that he will be allowed to re-join after discharge from the hospital. The workman is claiming salary and treatment expenses from the Department on account of electric shock while working on the telephone wire during the duty time. The Management terminated the workman w.e.f. 28.4.2002. The respondents filed the reply (Annexure P-4). Vide Award (Annexure P-6) dated 11.4.2011 the reference was answered in favour of the workman. Mr. Madan Mohan, counsel for the petitioner has argued that in the reply a specific stand was taken before the Labour Court while filing the reply that the work was being got done through a contractor under the duly executed agreement. There was no direct relation of master and servant with the respondent No.1-workman. He was never recruited according to recruitment rules prescribed for the appointment. The documents submitted by the claimant from C-15 to C-44 are manufactured documents where an attempt is being made to show that the documents were shown signed by the JTO and by the SDO with whom he has worked. No evidence has been led to show that the wages were directly paid by the Department. He has placed reliance of the judgment of the Supreme Court in International Airport Authority of India versus International Air Cargo Workers' Union and another (2009) 13 Supreme Court Cases 374 to contend that there was no relationship of master and servant with the workman. After hearing counsel for the petitioner, it is not disputed that the workman had worked for almost for 15 years as a daily wage workman as lineman. The documents filed by the workman beyond doubt proved that he had Civil Writ Petition No. 13187 of 2011 -3- been working with the petitioner Management as lineman. The diaries, which have been filed by the workman were prepared in an ordinary course of business proved that the workman was working directly under the administrative control of the Management. It is established before the Tribunal that the workman had met with an accident while working in the office hours of the Management. He was socially emotionally and financially helped at the time of accident. The Management has not proved the contract agreement with the contractor. The contractor was not summoned in the Court as a witness. The Management failed to prove that the consolidated amount was paid to the contractor and the contractor used to pay the wages to the workman. Even in the documents relating to his treatment he has been shown by the Government Medical College as Government servant. It is not disputed by the Management that he had worked for 240 days in the office before the date of termination. Despite direction by the Tribunal the Management failed to prove the original agreement with contractor tendered by it. All these above facts goes to prove that the workman was working under the direct control of the petitioner Management for the last 15 years. After he met with the accident he was unceremoniously terminated and not allowed to join the duty on 28.4.2002. The ratio of the judgment of the Supreme Court in International Airport Authority of India versus International Air Cargo Workers' Union and another (supra) and Gujarat Electricity Board versus Hind Mazdoor Sabha (1995) 5 SCC 27 does not support the case of the petitioner. The observation of the Supreme Court in paragraph 38 is as under :- “The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere comouflage. For example, if the contract is for supply of labour, necessarily, the labour Civil Writ Petition No. 13187 of 2011 -4- 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.” The petitioner-Management has miserably failed to prove the contract/agreement by which lump-sum payment was made by them for the petitioner to the contractor. The contractor was never summoned as a witness. All these facts shows that the contract between principal employer and contractor was a sham, nominal and is a mere camouflage. In the facts of the present case the Management has miserably failed to show that the workman was working under the control of the contractor, neither the contract/agreement was proved nor the contractor was summoned as a witness. In view of the above facts, the writ petition is dismissed. July 27, 2011 ( RITU BAHRI ) Vijay Asija JUDGE