IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2045 of 2007 Date of decision : 27th August, 2008 Medical College, Agroha (Hisar) through its Director … Petitioner Versus Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar and another. … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Raman B. Garg, Advocate for the petitioner. Mr. Dinesh Nagar, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by Medical College, Agroha (Hisar) through its Director (hereinafter called the ‘management’) impugning the award dated 20.02.2006 (Annexure P-1) passed by Labour Court, Hisar. Labour Court, vide its award upheld the claim of respondent No.2 – Ram Rattan (hereinafter called the ‘workman’) and ordered reinstatement with continuity of service and all consequential benefits including 50 percent back wages from the date of issuance of demand notice. Workman, on 29th September, 2001 served a demand notice, wherein he stated that he had worked as an un-skilled labourer in Maharaja CWP 2045 of 2007 Agarsen Medical Research and Education Society, Agroha from March 1995 to 1st November, 1998 and therefore, his termination from service without taking recourse to provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter called the ‘Act’) being illegal, is liable to be set aside. State of Haryana referred the following question for adjudication to the Labour Court: “Whether the termination of services of Sh.Ram Rattan is legal or not? If not, to what relief, he is entitled to?” Workman also filed a claim statement and averred therein that management was owner of 70 acres of land and required a workforce. It was further stated therein that without issuing any appointment letter on regular basis, workman was engaged and this tantamounted to unfair labour practice. Management denied that the workman was employed by them, rather they took a plea that he was an employee of a contractor and from him, he used to take his salary. Both parties led evidence before the Labour Court. The Labour Court came to the conclusion that petitioner had worked for 240 days in the preceding 12 months and relied upon Food Corporation of India Haryana Region v. The Presiding Officer, Central Government, Industrial Tribunal, Chandigarh, 1950-1988 (1) RSJ 614 and held that unless principal employer has obtained a certificate of registration qua the establishment and the contractor employed is licensed, provisions of Contract Labour (Regulation and Abolition) Act, 1970 cannot be invoked and workman shall be construed to be worker of principal establishment and thus an employee of Maharaja Agarsen Medical Research and 2 CWP 2045 of 2007 Education Society, Agroha. In pursuance of this reasoning, the Labour Court granted benefit of reinstatement with continuity of service and 50 per cent back wages. We are of the view that the reasoning propounded by the Labour Court cannot be sustained. A Division Bench of this Court, in which one of us (Kanwaljit Singh Ahluwalia, J.) was a member, in CWP No. 12951 of 2007 titled as Surinder Singh and others v. The Presiding Officer and others decided on 1st August, 2008, examined a similar legal submission and held that the reliance placed upon the judgment of Food Corporation of India’s case (supra), cannot be accepted and held as under: “The workmen has placed reliance upon Food Corporation of India, Haryana Region, Sector 17, Chandigarh versus The Presiding Officer, Central Government Industrial Tribunal, Chandigarh and another, (4) 1987(2) SLR 678 to contend that non-registration of the establishment, and, the Contractor have not obtained the licence will entitle them to be treated as the workers of the principal employer. The judgment of Food Corporation of India's case (supra) has been distinguished by another Division Bench of this Court which held that no reliance can be placed upon the judgment of Food Corporation of India's case (supra) as the same had not noticed the ratio of law laid by the Supreme Court. It will be apposite herein to reproduce para No.16 of the Division Bench judgment in Gian Singh and others versus Senior Regional Manager, F.C.I., Chandigarh, (1992)1, I.L.R., 54, which reads as under:- “(16) Now let us examine the contentions of the learned counsel for the appellants that if there is violation of the provisions of the Act, to the effect that the principal employer does not get registration as required under Section 7 of the Act and or the contractor does not get the licence under Section 12 of the Act, the persons so appointed by the principal 3 CWP 2045 of 2007 employer through the contractor would be deemed to be the direct employees of the principal employer. We see no such inference deducible from the violation of the provisions of the Act. Section 9 of the Act prohibits the employment through the contractor in case of non- registration. But if a principal employer does employ persons through the contractor inspite of non- registration, the only penal provisions are Sections 23 and 24 of the Act i.e. that the principal employer can be proceeded against under these sections but the Act nowhere provides that such employees employed through the contractor would become the employees of the principal employer. If such was the interpretation then the Supreme Court in cases of Food Corporation of India Workers Union's and B.H.E.L. Workers' Association (supra), would have straightway granted the relief and would have held that the employees employed through the contract labour had become the employees of the principal employer and were entitled to all the benefits which were available to the regular employees, but as seen above the Supreme Court never granted such a prayer. Moreover, it would be seen from the title of the Act that it is to provide for the abolition of the contract labour and for providing certain facilities to such contract labour. As far as the abolition is concerned, as to whether in a particular establishment such contract labour should be abolished or not, the power has been given to the appropriate Government under Section 10 of the Act. The facilities which are to be provided to such contract labour by the principal employer have been provided under the Act and if such facilities are not provided, the remedies are also provided; but by no stretch of it can be said that the contract labour would become the employees of the principal employer under the provisions of the Act. As far as the Division Bench judgment of this Court in Food Corporation of India, Haryana Region, Sector 17, 4 CWP 2045 of 2007 Chandigarh versus The Presiding Officer, Central Government Industrial Tribunal, Chandigarh and another (4), is concerned, it may, be noticed that the above mentioned two authorities of the Supreme Court were not noticed by the Division Bench. Otherwise also, one of the Judges who was a member of that Division Bench has dismissed the writ petitions against which the present Letters Patent Appeals have been filed and while dealing with the said Division Bench judgment, the learned Single Judge has observed as under:- “This being the position in law, the facts pleaded by the Corporation in their written statement assume importance, as it has been specifically pleaded that throughout the State of Punjab there is not a single establishment where the labour employed by the contractors has exceeded ten in number. On that basis, the possession of licence by the contractors becomes immaterial under Section 12 of the Act of 1970, as persons engaged by the contractors and deployed by them on food storage depots as Security Guards shall remain the contract labour of the respective contractors. This precisely is the ratio of the Division Bench judgment of this Court in Food Corporation of India, Haryana Region, v. The Presiding Officer, Central Government Industrial Tribunal, Chandigarh and another 1987 (2) S.L.R. 678.” However, the controversy stands concluded later by Hon'ble the Apex Court in Steel Authority of India Limited and another v. National Union Water Front Workers and others, 2001 LLR 961. The Apex Court held that non- registration of the establishment and the Contractor being unlicenced may attract penal provisions of the Act but in no way it can bestow relationship of master and servant between the principal establishment and the workmen.” 5 CWP 2045 of 2007 Labour Court had not noticed a judgment of Division Bench of this Court in Gian Singh and others v. Senior Regional Manager, FCI Chandigarh (1992) 1 ILR, 54; and another judgment of Hon'ble Apex Court rendered in Steel Authority of India Limited and another v. National Union Water Front Workers and others, 2001 LLR 961. Since we have already held a view, therefore, award (Annexure P-1) cannot be sustained and is liable to be set aside. Accordingly, we allow the present writ petition and quash the award (Annexure P-1) and hold that respondent – workman is not entitled to reinstatement and full consequential benefits including 50 per cent back wages as awarded by the Labour Court. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE August 27, 2008. rps 6