1 wp-935-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 935 OF 2011. Shri Shivaji Govind Rane. ..Petitioner. vs. M/s. Film Center & Anr. ..Respondents. .... Mr. N.M. Ganguli, for Petitioner. Mr. Rohan Cama, i/b. G.K. Tripathi, for Respondent No.1. Mr. N. Jalota, i/b. Mr. Anoopkumar Sharma, for Respondent No.2. .... CORAM : S.J. KATHAWALLA, J. DATE : 27TH JUNE 2011. P.C. : The above Writ Petition is taken up for Admission. 2. By this Writ Petition, the Petitioner has impugned the Award dated 11th October 2010 passed by the Fifth Labour Court at Mumbai by answering the Reference in the negative and holding that the Petitioner was not the employee of the Respondent No.1 – M/s. Film Center but was directly employed by the Respondent No.2- Contractor M/s. Shivsagar Cleaners. 3. According to the Petitioner he was appointed as a helper since the year 1987 by the Respondent No.1. His last drawn wages were Rs.2,200/- per month. However, the Respondent No.1 did not extend any statutory benefits to him like the benefits of the ESI whilst in employment. It was alleged by the Petitioner that he met with an accident in the factory premises of Respondent No.1 on 28th 2 wp-935-11 September 1995 and after the said accident, the Respondent No.1 sent him to J.J. Hospital for medical treatment. He was again referred to Walkeshwar medical center at the instance of the Respondent No.1 vide their letter dated 11th June 1996. The Petitioner has also contended that he was employed and paid by the first party and he was never employed by the Respondent No.2- Contractor. According to him, the record created to that effect is fabricated so as to deprive him of the statutory benefits. He further alleged that he was never extended the benefits under the ESIC nor the ESIC card or the code number provided to him. According to him, the muster roll and the wage registers produced by the Respondents are fabricated. 4. On behalf of the Respondent No. 1 it was contended that the Petitioner was directly employed by Shri Laxman Waghela, Proprietor of M/s. Shivsagar Cleaners who was an independent employer of the Petitioner. Respondent No.2 paid the wages and supervised and controlled the work of the Petitioner. The Petitioner was extended benefits under ESIC and PF Scheme whilst in the employment of Respondent No.2. Therefore there was no employer- employee relationship between the Petitioner and the Respondent No.1. Hence, the Reference was not tenable. It was submitted on behalf of the Respondent No.1 that the Respondent No.1 was in the business of film processing and the entire cleaning and house keeping work at its laboratory was awarded to the Respondent No.2. The said contractor was also having similar house keeping contracts of commercial companies and commercial establishments. It was further contended that the Petitioner did not meet with an accident 3 wp-935-11 on 28th September 1995 in the premises of the Respondent No.1. It is submitted that since the Petitioner had an eye problem and since the Proprietor of the second Respondent could not help him financially due to his own problems, he sought assistance of the Director of the Respondent No. 1 Shri Arun Patel who in his personal capacity helped the Petitioner purely on humanitarian grounds, including financial help through his family trust. It is submitted that the sympathy shown to the Petitioner was misused by him. 5. It is submitted that the services of the Petitioner were not terminated by the Respondent No.2 and in fact, the Respondent No.2 had written several letters to the Petitioner calling upon him to report to work. However, the Petitioner failed to do so. It was therefore submitted that the Reference be dismissed. 6. The Respondent No.2 – M/s. Shivsagar Cleaners equally contested the matter. The Respondent No.2 contended that it has been taking contracts of cleaning and for house keeping from the Respondent No.1 as well as from the other parties since 1992 and was covered under the ESIC. The ESIC contribution of the Petitioner was deducted regularly and remitted to the ESIC along with the Employer’s contribution. The wage register and muster roll from 1992 onwards maintained by the Respondent No.2 M/s. Shivsagar Cleaners discloses the name of the Petitioner as its employee. It is contended by the Respondent No.2 that since inception of the proceedings before the Labour Court as well as in the earlier judicial proceedings the Respondent No.2 has specifically taken up the stand that the Petitioner was in their employment and his services has not 4 wp-935-11 at all been terminated. It was further pointed out that the Respondent No.2 has written several letters to the Petitioner calling him to report for work, but the Petitioner did not turn up nor respond to the letters. It was further submitted that Respondent No. 2 was financially unable to help the Petitioner and therefore, he had requested Shri Arun Patel, Director of Respondent No.1 to help the Petitioner on humanitarian grounds and the said request was accepted by him. The Respondent No. 2 therefore sought dismissal of the Reference with costs. 7. Mr. Ganguli appearing on behalf of the Petitioner has submitted that when the Petitioner had met with an accident and his eye was injured, it was the Respondent No.1 who took steps to provide medical aid to the Petitioner which goes to show that the Petitioner was in the employment of the Respondent No.1 and not Respondent No.2. 8. In the said Reference before the Fifth Labour Court, the Petitioner examined himself and also examined Shri Arun Patel, Director of the Respondent No.1. The Respondent No.1 examined Shri A. Suryawanshi, Personnel and Administrative Officer, Shri G.V. Kulkarni, former Executive Personnel and Shri Pravindchand Shah. Shri Laxman Waghela, the owner of the Respondent No.2 M/s. Shivsagar Cleaners, was also examined. 9. The learned Advocates for the Respondents have submitted that the Petitioner themselves examined Shri Arun Patel, the Director of the Respondent No.1 as their witness. They have further 5 wp-935-11 submitted that in the evidence of Shri Gopal Vitthal Kulkarni, the former Executive Personnel of the Respondent No.1, he has categorically deposed that the Petitioner had not met with an accident on 28th September 1995 in the factory premises of the Respondent No.1 and that the Petitioner had approached his employer namely Respondent No.2 for his eye problem but since the Proprietor of the Respondent could not help him financially, he sought help of Shri Arun Patel and Mr. Patel helped him purely on humanitarian grounds and also helped him financially through his family trust. Interestingly, the evidence of Shri Kulkarni has gone unchallenged since the Advocate for the Petitioner did not opt to cross-examine Shri Kulkarni on this issue. 10. The learned Judge, Fifth Labour Court, Mumbai after appreciating the evidence including the records of the Respondents produced before him has noted that it is clearly established from the record produced by the Respondent No.2 M/s. Shivsagar Cleaners, that the Petitioner is on the roll or employment of the Respondent NO.2. The evidence led by Mr. Laxman Waghela, the Proprietor of the second Respondent goes to establish that the Petitioner was in the employment of the Respondent No.2 since 1992 and he has been deputed to work with the Respondent No. 1. The attendance registers produced on record confirms the said position. Further, the wage register produced by the Respondent No.2 M/s. Shivsagar Cleaners, equally confirms that the Petitioner was being paid the wages in the capacity of the employee of the Respondent No.2. It is the Respondent No.2 who was effectively exercising supervision and control over the work of the Petitioner. It is further held that as 6 wp-935-11 against this, the wage register and attendance register produced by the Respondent No.1 no where reflect the name of the Petitioner in any capacity. It is further held that huge record for a considerable period of several years cannot be labelled as forged merely because the Petitioner Workman disowned its authenticity. In fact, the witness of the Respondent No.1 categorically deposed that he was maintaining the muster cum wage register in his own hand writing and the same is proved by preponderance of probability. It is further held that the ESIC record i.e. the I-card issued to the Petitioner categorically reveals the name of the Respondent No.2 as the employer of the Petitioner and it can be seen that the Petitioner Workman was covered under the ESIC and PF benefits through the Respondent No. 2 – Contractor, M/s. Shivsagar Cleaners. The Fifth Labour Court has further recorded that during the course of his cross-examination, the Petitioner has categorically stated that he is not willing to work for the Respondent No.2 as he is the employee of the Respondent No.1. The learned Judge therefore observed that it is strange that the Respondent No.1 with whom the Petitioner claimed his employment and categorically failed to establish the same is refusing to accept employment of the Respondent No.2 M/s. Shivsagar Cleaners with whom his employment is proved. The Fifth Labour Court therefore held that the relief of reinstatement of the Petitioner with Respondent No.2 also cannot be granted. 11. From the aforesaid facts, I am satisfied that the Fifth Labour Court, Mumbai has considered the entire oral and documentary evidence produced before it and after appreciating the said evidence has reached a finding of fact that the Petitioner was at no point of 7 wp-935-11 time in the employment of the Respondent No.1 and was always in the employment of the Respondent No.2 who was given the Contract of house keeping by the Respondent No.1 and the Petitioner was deputed by the Respondent No.2 to work in the laboratory of the Respondent No.1. The Award passed by the Labour Court therefore in my view need no interference under Article 226 of the Constitution of India and the Writ Petition deserves to be dismissed. 12. The Writ Petition is therefore dismissed. However, there will be no order as to costs. [ S.J. KATHAWALLA, J. ]