Civil Writ Petition No.7624 of 1997. -1- In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No. 7624 of 1997. Date of decision :18-1-2008 Haryana National Fertilizers Ltd. Mazdoor Congress. ...Petitioner. Versus National Fertilizers Limited,Panipat and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Ms. Abha Rathore Advocate for the petitioner. Mr.Alok Jain Advocate for the respondents. ... K. C. Puri, J. Judgment. In this Civil Writ Petition filed under Articles 226/227 of the Constitution of India by the Union on behalf of 122 workers, the Union seeks the indulgence of this Court for quashing award dated 22.11.1997, Annexure P-8, passed by the Industrial Tribunal-cum- Labour Court, Panipat. This case relates to the termination of services of 122 workmen. These workmen were working on different posts. Although Civil Writ Petition No.7624 of 1997. -2- they were treated as employees of the contractors, but actually they were employees of National Fertilizers Limited (in short N.F.L). The nature of their duty was of permanent nature. Their work was supervised by the supervisors of the N.L.F. Provident fund was paid by the N.F.L in respect of each of them. Wages were paid to them by the N.F. L on monthly basis through the contractors. It is further pleaded that the petitioners filed Civil Writ Petition No.9249 of 1983 in the Hon'ble Supreme Court claiming equal pay for equal work. They also prayed for striking down of Contract Labour Regulation and Prohibition Act. The Hon'ble Supreme Court up-held the provisions of the Act and dismissed the Writ Petition on 18.1.1985 with the directions to the State of Haryana to consider whether the employment of contract labour should not be prohibited under Section 10 of the Act. Further directions were given to the Labour Commissioner to enquire whether the work done by the contract labour was the same as done by the workmen directly employed by the Principal Employer. 122 workmen whose particulars are given in para No.2 of this Civil Writ Petition and whose services were terminated on 22.6.1983/30.6.1983 raised an industrial dispute vide demand notice dated 20.7.1987 against their termination but the matter was not referred for adjudication by the State Government. The petitioner-Union and the workmen then filed Civil Writ Petition No.4813 of 1986 in this Court seeking compliance with the directions Civil Writ Petition No.7624 of 1997. -3- of the Hon'ble Supreme Court and to consider the question of abolition of contract labour as well as for reference of the dispute relating to termination. The said writ petition was dismissed as withdrawn. Pursuant to the directions of the Hon'ble Supreme Court in Civil Writ Petition No.9249 of 1983, contract labour of sweeper and stitching of urea bags in the National Fertilizers Limited was abolished on 16.7.1985. Ultimately, the Government of Haryana referred the dispute for adjudication. The Labour Court vide award dated 22.11.1997, Annexure P-8, held that the workmen were not the employees of National Fertilizers Limited and were employees of the contractor. The Labour Court also held that the workmen did not lead any evidence that they worked for 240 days and hence the reference was dismissed. The petitioners have termed the impugned award as perverse, illegal and contrary to the evidence on the grounds that the Labour Court has erred in deciding the issue whether the workmen were employees of the National Fertilizers Limited; the onus to prove that the workmen had not completed 240 days was on the respondents and the Labour Court has wrongly shifted the onus on the workers; that the findings of the Labour Court that the service period of terminated workmen is less than 240 days is contrary to record; that the Labour Court has gone wrong being influenced by the mode and manner of recruitment of regular workmen in the National Fertilizers Limited and that the evidence relied upon by the Labour Court is illegal. Civil Writ Petition No.7624 of 1997. -4- The respondent No.1 contested the claim of the petitioners and filed written statement on the plea that there was no Union namely NFL Mazdoor Congress and that the so called Union came into existence only after the termination of services of workmen; that the so called Union cannot espouse the cause of 122 workmen; that Satinder Singh, General Secretary was not authorised by the Union to file the present Civil Writ Petition in representative capacity;that the Haryana NFL Mazdoor Congress had no connection whatsoever either with Haryana Pradesh Mazdoor Congress Workers Union or Lal Jhanda Mazdoor Union (Regd.);that the petitioner in representative capacity never raised any demand as stipulated under Section 2-A of the Industrial Disputes Act, 1947 at any time before the reference was made by the Government of Haryana and as such the reference cannot be said to be on behalf of the writ petitioner;that the relief sought by the petitioner on the basis of order of the Hon'ble Supreme Court of India has already been complied with by the appropriate Government while notifying and constituting the Committee for abolition of the Contract Labour System; that the Labour Court erred in law in not holding that the reference dated 26.11.1987 made by the Government on the basis of some belated demand notice dated 20.7.1987 was vague and defective; that the matter regarding termination of contract labourers of respondent Nos.2 to 5 has already been agitated before the Hon'ble Supreme Court of India in Civil Writ Petition No.9241 of 1983 Civil Writ Petition No.7624 of 1997. -5- and no relief had been granted to the contract labourers; that the Government of Haryana had no authority in law to refer the dispute on same and similar points once agitated before the Hon'ble Supreme Court of India;that there never existed any master-servant relationship interse the answering respondent and 122 workmen;that the petitioner Union was not registered under Trade Union Act,1926;that there was no privity of contract between the workmen and the answering respondent; that the answering respondent never treated 122 workmen as employees of contractors; that the direct and overall control over the labourers was of the contractor who is their employer; that the answering respondent cannot either terminate or even transfer or shift the contract labour from one job to another;that the names of most of 122 petitioners were not mentioned in the list of workmen in Annexure A-1 attached with Writ Petition No.9249 of 1983 and the contractors were not made party before the Hon'ble Supreme Court of India;that after the dismissal of said writ petition, the Haryana Government issued notification dated 16.7.1985, Annexure MW4/1, prohibiting engagement of contract labour in sweeping and cleaning in plant and stitching of urea bags in bagging plant in M/s National Fertilizers Limited and that the impugned award is neither perverse nor illegal nor contrary to the evidence on record. I have heard arguments of learned counsel for the parties and have gone through the record of the case. Civil Writ Petition No.7624 of 1997. -6- The learned counsel for the petitioners has submitted that the petitioners would be deemed to be employees of N.F.L as they have been working under the supervision of authorities of N.F.L. The contributory provident fund was deposited under the supervision of N.F.L. The petitioners cannot be taken as employees of contractors. Moreover, N.F.L has not given the names of the contractors under whom the petitioners worked So, in these circumstances, the petitioners are entitled to be re-instated with all back wages as their services have been terminated without complying with the provisions of Section 25F. It is further submitted that as the N.F.L has not produced the file, an adverse inference is required to be drawn against the N.F.L in view of authority reported as R.M.Yellatti Versus Asstt. Executive Engineer, (2006) 1 Supreme Court Cases 106. I have considered the said submission but do not find any force in the same. Various documents placed on the file prove the fact that the petitioners never worked under the N.F.L. They were the employees of contractors. Authority in R.M.Yellati's case (supra) is distinguishable as even from the close scrutiny of the pleadings of the petitioners, it is revealed that they have pleaded themselves to be the employees of the contractors. The learned counsel for the petitioners has further submitted that all the petitioners have completed more than 240 days and as such their services could not be terminated without complying Civil Writ Petition No.7624 of 1997. -7- with the provisions of Section 25F. It is submitted that Satinder Singh, one of the petitioners, has completed 240 days and to prove this fact, the counsel for the petitioners has submitted that from the statement of Mr. Chutani and the record produced in the writ petition it is proved that he has completed 240 days. I have carefully considered the said submission but do not find any force in the same. The Labour Court has given a finding that the petitioners have not completed 240 days and on that count, Section 25F is not attracted. The Writ Court is not a Court of evidence. The finding of fact recorded by the Labour Court cannot be interfered with unless the same is illegal or perverse. There is nothing on the file that the finding of the Labour Court to the effect that the petitioners have not completed 240 days in the last calendar year is perverse or illegal and as such the same cannot be interfered with in the present writ petition. Moreover, Satinder Singh petitioner could not prove the fact before the Labour Court that he has completed 240 days. The documents placed on the file in the writ petition are not sufficient to prove the fact that he has completed 240 days as no specific document has been referred to by the counsel for the petitioners in this regard. The statement of MW5 Mr. Chutani has not been placed on the file before the Labour Court and the same cannot be appreciated in the writ jurisdiction. Civil Writ Petition No.7624 of 1997. -8- It is further submitted by the counsel for the petitioners that the petitioners are not demanding regularization of their services but have prayed for their re-instatement on the posts on which they were working at the time of termination of their services. The arguments advanced by the counsel for the petitioners look attractive but are without any force. The petitioners can succeed only in case they are able to prove the fact that their services have been illegally terminated. The petitioners have failed to prove that fact. Lastly, the learned counsel for the petitioners have submitted that in case the petitioners are not held to be the employees of N.F.L, in that case, they should have been reinstated under the contractors. I have carefully considered this submission but do not find any force in the same also. The Labour Court has given a definite finding that the petitioners have not completed 240 days in the last calendar year and as such are not entitled to re-instatement. The onus to prove the fact that they have worked under the contractors was on the petitioners. The N.F.L got deposited the contributory provident fund from the contractors to fulfill the requirement of law. By mere depositing contributory provident fund, they are not to be termed to be the employees of N.F.L,moreso when in a number of documents including in previous writ petition, they have pleaded that they are the employees of contractors. Civil Writ Petition No.7624 of 1997. -9- In Civil Writ Petition No.2167 of 2007 titled Divisional Forest Officer (Social), Hisar Versus Krishan Kumar and another, a Division Bench of our High Court has held that Section 25F is not attracted in respect of casual labourer on daily wages. In view of the above discussion, the writ petition is without any merit and the same stands dismissed. January 18 ,2008. ( K. C. Puri ) Jaggi Judge