THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No. 26889 OF 1998 ORDER: Challenging the Award passed on 22-07-1996 in I.D.No.73 of 1991 by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, this writ petition has been instituted. I.D.No.73 of 1991 has been raised by the petitioner complaining of his illegal retrenchment by the 1st respondent on 30-07-1990. The case of the petitioner is that he worked as a Supervisor between 14-08-1989 to 30-07-1990 on daily wages of Rs.18-80 ps., with respondents 1 and 2 and his services have been abruptly terminated without any notice and without paying him any notice pay in lieu thereof and without following the procedure prescribed under Section 25F of the Industrial Disputes Act. Further, the case of the petitioner is that he was underpaid by respondents 1 and 2 and since, he has taken up the said issue with the Labour Enforcement Officer (Central), vide his complaint dated 09-08-1990, he was made a scapegoat and thus, victimized. It was further contended that the Labour Enforcement Officer (Central) has reacted to his complaint and called for compliance report from respondents 1 and 2 herein before 30-08-1990 and hence, respondents 1 and 2 set up one of their manpower supply contractors by name Sri I.I. Dewan and when the petitioner visited the project site on 07-09-1990, the said contractor at the instigation of the site engineer forced the security guards to use force against him and thus, coerced him into signing various papers and later on used the same as if all his dues have been settled by the said manpower supply contractor. In spite of the petitioner examining himself as WW-1 and also marking eight exhibits on his behalf, the Industrial Tribunal-cum- Labour Court has erroneously dismissed his industrial dispute and hence, he has instituted this writ petition. Heard Smt. Anita Ahuja, the learned counsel for the petitioner and Sri K.V.Simhadri, the learned counsel for respondents 1 and 2. Smt. Anita Ahuja while reiterating the contentions canvassed by the writ petitioner before the Industrial Tribunal-cum-Labour Court, would further urge that the petitioner has presented all such documents, which are in his possession to establish the fact that he is directly employed by respondents 1 and 2 and in spite of moving an application before the Industrial Tribunal for summoning the relevant records, the respondents 1 and 2 have failed to produce the same on the ground that the same were destroyed after preserving them for some time. In spite of the same the Tribunal has failed to draw an appropriate adverse inference against respondents 1 and 2 and hence, failed to resolve the dispute correctly by holding the petitioner as the workman of respondents 1 and 2, but not that of the labour contractor. Sri K.V. Simhadri submits that the Award is a well considered one warranting no interference. The learned counsel has placed reliance upon the following judgments rendered by the Supreme Court: 1. ZILLA SAHAKARI KENDRIYA BANK MARYADIT v. SHAHJADI BEGUM AND OTHERS [1]. 2. M/S. SRIRAM INDUSTRIAL ENTERPRISES LIMITED v. MAHAK SINGH AND OTHERS [2]. 3. VIVEKANAND SETHI v. CHAIRMAN, J&K BANK LIMITED AND OTHERS [3] The controversy in this writ petition lies in a narrow compass. The petitioner asserted that he worked as a Supervisor with respondents 1 and 2 between 14-08- 1989 to 30-07-1990, when his services were abruptly terminated by the respondents, whereas the case of respondents 1 and 2 is that M/s Bridge & Roof (India) Company Limited, which is a public sector subsidiary enterprise of Bharat Yantra Nigam Limited under the Ministry of Industries and that it carries on business of executing civil and structural works on contract basis at several places in the country and one such work was undertaken for execution at “Machinery Tests Center Project”, Naval Dry Dock, Visakhapatnam and that the respondent Corporation has obtained license under the Contract Labour Regulation (Labour & Abolition) Act and hence, it employed manpower supply contractor and one of them was Sri S.N.Singh, with whom the petitioner worked from 01-08-1989 and he left the services after about 3 ½ months and that subsequently he was employed by another contractor Sri I.I. Dewan, with effect from 01-01-1990 and it is that contractor, who is the employer of the petitioner, but not the respondents herein. It is further urged by the respondents that when the petitioner refused to receive his terminal benefits and instead, complained to the Labour Enforcement Officer to intervene and settle his dispute, it is these respondents, who arranged for payment of Rs.2,000/- to the petitioner as their manpower supply contractor was bound to pay all such monies, which are due and payable to the workmen and the said money would be deducted from the bills payable to the said manpower supply contractor. In short, respondents 1 and 2 have denied and disputed the relationship of employee – employer between the petitioner and themselves. On the above premises when the parties went to trial, the petitioner examined himself as WW-1 and also exhibited eight documents Exs.W-1 to W-8. The petitioner has asserted that he was the employee of respondents 1 and 2, but not that of the manpower supply contractor. Ex.W-1 is the legal notice got issued by him on 12-11-1990. Ex.W-2 is a bunch of nine chits, which disclose the nature of duties performed by the petitioner by securing various supplies from the Engineering stores. Ex.W-3 is the complaint lodged by the petitioner with the Labour Enforcement Officer. Ex.W-4 is the communication sent up by the said Officer to the management of the respondents for settling the dispute. Ex.W-5 is the representation submitted by the petitioner to the Labour Enforcement Officer, while Ex.W-6 is a copy of the list prepared by the workman. Exs.W-7 and W-8 are the copies of the attendance cards. Per contra, on behalf of respondents 1 and 2 it’s Accounts Officer has been examined as MW-1 and the manpower supply contractor Sri I.I.Dewan was examined as MW-2. They have also exhibited sixteen documents. Ex.M-1 was the stamped cash voucher passed on by the petitioner for having received Rs.2,000/- on 07-09-1990. Ex.M-2 is a letter of the petitioner stating that the disputes between him and the employer are settled amicably. Ex.M-3 Letter of Sri I.I.Devan and Ex.M-4 is the arrear payment statement. Exs.M-5, M-6, M-7, M-8, M-9, M-10 and M-11 are the attendance cards issued by the contractor Sri I.I.Dewan. Ex.M-12 is the muster roll book of Sri I.I.Dewan. Ex.M-13 is the labour supply payment register. Ex.M-14 is the reply sent up to the legal notice Ex.W-1, on 20-11-1990. Ex.M-15 is a communication by respondents 1 and 2 to the contractor Sri I.I. Dewan, while Ex.M-16 is the employment card. While sending up the reply to the legal notice Ex.M-14 on 20-11-1990, it is specifically averred that the petitioner is not the employee of respondents 1 and 2, but he is the employee of the labour contractor Sri I.I.Dewan. It is further asserted that the petitioner was only employed from 01-01-1990 by the said I.I.Dewan. It is further asserted that all payments due to the petitioner have been settled on 07-09-1990 and he has executed a stamped receipt after having received the said payment. The case of the petitioner is that he has been coerced into executing several documents including Ex.M-1 cash voucher on 07-09-1990. This theory is simply unacceptable for, prior thereto the petitioner has already approached the Labour Enforcement Officer (Central) seeking his intervention for settling the dispute. Accordingly, the Labour Enforcement Officer has also addressed Ex.W-4 letter on 21-08-1990 requiring the management to settle the dispute amicably. Therefore, if the writ petitioner has not been paid all his dues on 07-09-1990 but was coerced into signing and executing various documents, going by the ordinary human conduct as well as his own, the petitioner would have surely approached the Labour Enforcement Officer once again, if any other agency including the police, immediately after 07-09-1990 bringing to the notice of the said Officer or agency of the irrational behavior of either the respondents or that of their manpower supply contractor Sri I.I.Dewan. Therefore, the conduct of the petitioner in keeping quite till he got served the legal notice Ex.W-1 on 12-11- 1990, works against the theory of coercion setup by him. It will be appropriate to notice, at this stage, the contents of Ex.W-5, which is a representation addressed by the petitioner to the Labour Enforcement Officer in Telugu. He has narrated that the office clerk of the Assistant Commissioner of Labour advised him to go to the project site as the Senior Resident Engineer of the project informed the Assistant Commissioner of Labour that the dues payable to the petitioner will be settled. The petitioner apprehended about going back to the site office, but still based upon the advise of the clerk he went back to the site office and he was informed that the labour contractor Sri I.I.Dewan has gone to Madras and that the petitioner can come back on 07-09-1990 and collect Rs.2,000/- from him. At that stage, the petitioner has protested and required the respondents to pay him what all is due to him instead of any fixed amount and therefore, he had gone back again on 07-09-1990 to the site office and they have obtained signatures on various papers forceably and that only a sum of Rs.2,000/- has been paid to him. The petitioner was again asked to report on 15-10-1990 for receiving a further sum of Rs.1,000/- or Rs.1,500/- and accordingly when he went back to the site office on 15-10-1990, but nothing was paid to him and he has been turned away. It is, therefore, obvious from the contents of Ex.W-5 representation that it must have been submitted to the Labour Enforcement Officer some time after 15-10-1990. This representation has clearly brought out that the petitioner has been paid only Rs.2,000/- on 07-09-1990 by Sri I.I.Dewan. This fact, that the petitioner received Rs.2,000/- on 07-09-1990 from Sri I.I.Dewan, the contractor, was also mentioned in Ex.W-1 legal notice. Therefore, the material produced by the petitioner including the attendance cards Exs.W-7 and W-8 are of no avail to him to establish that he is an employee of respondents 1 and 2 herein. The various slips, which the petitioner has produced as Ex.W-2 only bear the particulars of steel and cement brought from the steel yard to M/s Bridge & Roof Company, Dry Dock Area. In fact, in his cross-examination the petitioner admitted that these requisition slips are for the month of July 1990 only. Ex.W-6 would only indicate that the petitioner has worked at the project site, but it will not lead to any inference that he has been employed by respondents 1 and 2 herein. Further, the slips, which have been brought on record as Ex.W-2 will not disclose either that he was in the employment of the respondents prior to 01- 01-1990. The steel and cement procurement data marked as Ex.W-6 contains the particulars from 05-09- 1989 up to 07-12-1990, but this document does not bear the signature of anyone other than that of the petitioner. The petitioner in his deposition has stated as under: “Ex.W-6 is the photostat copy for the list prepared by me for the steel and cement received by me. It is a list prepared by me personally.” Therefore, the documentary evidence produced by the petitioner will not establish the direct relationship of employment between the petitioner and the respondents. On behalf of the respondents its Accounts Officer has been examined as MW-1. MW-1 has stated that they have obtained licence from the Assistant Commissioner of Labour (Central) under the Contract Labour (Regulation and Abolition) Act, for the purpose of entrusting the work to sub-contractors. It is also deposed by him that all wages were paid to the workers by them and later on they deducted amounts from the bills of the contractors. It was also asserted by MW-1 that for appointment of a Supervisor, the minimum qualification required is a qualification in Civil Engineering (LCE), whereas for the post of a Store Keeper, one must be a Graduate, whereas the petitioner possess neither of these qualifications. In the cross-examination, this witness has deposed that the respondents have engaged 5 to 6 sub-contractors for the project at Dry Dock. As was already noticed supra, Sri I.I.Dewan was examined as MW-2. He clearly deposed that the petitioner worked with him. It is his case that the petitioner has not worked for 240 days at all. After the work is completed at the project he has paid and settled the dues payable to the petitioner. The letter addressed by the petitioner on 23- 08-1990 / 07-09-1990, has been signed by the petitioner on 07-09-1990, which is marked as Ex.M-3. Through this communication the petitioner has informed that he has no subsisting claim. Ex.M-4 was the calculation memo for the dues payable to the petitioner. Ex.M-5 was the attendance card issued by the petitioner. It contained the number of days the petitioner attended and also the over time work performed by him. More importantly, Ex.M-12 is a muster roll maintained by Sri I.I.Dewan. It contained eight names starting with Sri Raj Keshar and eighth name is that of the petitioner. This register is commencing from 01-01-1990. Ex.M-13 is the acquittence / payment register for the month of July 1990. It contained five names starting with Sri Manoj Kumar ending up with the petitioner herein. Against the face of a revenue stamp, the petitioner has signed and put the date ’07-09-1990’ there, in evidence of his receiving Rs.518-92 ps., towards wages for the said period, which included over time amount of Rs.70-12 ps. His wages were calculated at the rate of Rs.18-70 ps., per day, which is also the same rate, which is calculated for another individual by name Sri Trinadh. The only difference between the two being, during the said month the petitioner has put in only 15 hours of over time, whereas Sri Trinadh has put in 120 hours. Therefore, from Ex.M-13, it emerges that the petitioner has been paid his wages for the month of July 1990 along with other employees. Ex.M-15 is a communication sent up by the respondents to M/s. I.I.Dewan on 02-05-1989 accepting his quotation dated 10-04-1989 after negotiations for a total value of Rs.18,00,000/- as per the terms and conditions mutually agreed on 30-03-1989. From Ex.M-15, it becomes clear that Sri I.I.Dewan was engaged as a contractor by the respondents herein. Ex.M-16 is the employment card signed by Sri I.I.Dewan as a contractor in respect of the petitioner. This employment card is filed in Form-XIV in accordance with Rule-76 of the Contract Labour (Regulation and Abolition) Central Rules. Therefore, the question that is answered by the Labour Court is to be tested on the anvil of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970. It will be appropriate to notice that Section 7 of the said Act required every principal employer of an establishment, to which the act applies, to make an application to the Registering Officer, in the prescribed manner, for registration of the establishment. This is what MW-1was referring to in his deposition that the respondents have registered themselves with the Registering Officer. Section 9 stipulates that no principal employer of an establishment shall employ contract labour in the establishment after expiry of the period for which it is registered or after the registration has been revoked. In other words, so long as the registration, in terms of Section 7 is subsisting, the principal employer is entitled to employ contract labour in his establishment. Section 10 of the said Act dealt with the issue of prohibition of employment of contract labour. In the instant case, no such notification of prohibition of contract labour, in the establishment or at the project site where the respondents 1 and 2 are working, has been brought out. Section 12 of the Act dealt with licensing of contractors. Section 13 dealt with the grant of license. For our inquiry, Section 21 will have some significance. Sub-section (1) of Section 21 thrusts an obligation on every contractor to be responsible for payment of wages to each worker employed by him as contract labour. Sub- section (2) thereof mandates the principal employer to nominate a representative to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amount paid as such. Importantly, Sub-section (4) contemplated that in case the contractor fails to make payment of wages or makes a short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction of any amount payable to the contractor under any contract or the debt payable to the contractor. Therefore, the statement of MW-1 that he has arranged for payment of Rs.2,000/- to the petitioner on 07-09-1990 towards settlement of dues commends itself for acceptance, inasmuch as the obligation to do so by the principal employer is derived from Sub-section (4) of Section 21 of the aforementioned Act. I am, therefore, of the opinion that the respondents made out a case that the petitioner was engaged as a contract labour by Sri I.I.Dewan, to whom manpower supply contract has been awarded by respondents 1 and 2 herein. Hence, the petitioner cannot be treated as an employee of respondents 1 and 2. The fact that the respondents have not produced some other documents sought for by the petitioner herein will not be of much help to the petitioner, inasmuch as the respondents have produced Ex.M-15 dated 02-05-1989 awarding the contract in favour of Sri I.I.Dewan. Ex.M-15 coupled with Ex.M-16 employment card in Form No.XIV filed by Sri I.I.Dewan including the name of the petitioner therein and the acquaintance register Ex.M-13 and the attendance register Ex.M-12, are clear enough to establish the fact that the petitioner has been engaged as a contract labour by Sri I.I.Dewan and hence, he is not directly employed by respondents 1 and 2 herein. As was noticed supra, reliance has been placed on the judgment of the Supreme Court in ZILLA SAHAKARI KENDRIYA BANK’s case cited (1) supra. It must be stated in all fairness that Smt. Anitha Ahuja, while submitting her case, professed that this judgment of the Supreme Court may not have any direct application, but nonetheless the analogy can be applied. I n ZILLA SAHAKARI KENDRIYA BANK’s case the Supreme Court was called upon to decide whether compensation becomes liable to be paid by the said Bank, who is the principal employer of the workman -a jeep driver, who died while working with the District Election Officer, who requisitioned the jeep from the said Bank for election work. The Supreme Court had answered the said question by holding the District Election Officer of the State of Madhya Pradesh as responsible for payment of compensation under the Workmen’s Compensation Act, as the accident arose during the employment of the workman with the District Election Officer. Therefore, the said principle evolved under the Workmen’s Compensation Act has no application to the present case on hand. The Supreme Court in M/S. SRIRAM INDUSTRIAL ENTERPRISES’s case cited (2) supra reviewed the law with regard to the burden of proof of employment and approved the ratio laid down by it earlier in R.M.YELLATTY v. ASSISTANT EXECUTIVE ENGINEER (AIR 2005 SCW 603), wherein the principle has been enunciated as under: “Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.” However, in the instant case the respondents having already produced the attendance register maintained by Sri I.I.Dewan together with the acquaintance register and the contract awarded by the respondents in favour of Sri I.I.Dewan, they have discharged the burden of proving the fact that the petitioner has not worked for 240 days effectively, preceding his termination and more importantly, he was not employed directly by respondents 1 and 2, but was engaged as a contract labour by a manpower supply contractor. In VIVEKANAND SETHI’s case cited (3) supra, the material which should be taken into account and consideration by the Industrial Tribunal-cum-Labour Court has been spelt out. In the instant case, the Industrial Tribunal-cum- Labour Court, Visakhapatnam, after considering the entire material on record has come to the conclusion that the petitioner – workman is not employed directly by respondents 1 and 2 herein and hence, he cannot seek reinstatement into their service. I have not found any infirmity or illegality in the conclusions drawn by the Industrial Tribunal-cum-Labour Court, Visakhapantam, in dismissing I.D.No.73 of 1991 raised by the petitioner. I, therefore, do not see any justifiable grounds or reason warranting interference with the Award passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam and hence, this writ petition is dismissed, but however, without costs. --------------------------------- Nooty Ramamohana Rao, J mrk 29th April 2011 [1] AIR 2006 SCW 5432 [2] AIR 2007 SC 1370 [3] (2005) 5 SCC 337