IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 12665 of 2008. Date of Decision : February 26, 2009. M/S Polymer Papers Limited, Faridabad. ...... Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum- Labour Court, Faridabad, and another. ...... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Ms. Abha Rathore, Advocate, for the petitioner. Mr. Gorakh Nath, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. In the present writ petition, the petitioner-management has challenged the order dated 14.02.2008 (Annexure-P-5), vide which the reference has been answered in favour of the workman holding the workman entitled to reinstatement in service with full back wages. Counsel for the petitioner-management contends that there is no relationship of employer and employee between the workman and the management as the workman was an employee of the contractor namely M/s Sovereign Manpower Consultant who had been engaged by the petitioner to provide labour for loading and unloading of polymer papers produced by the petitioner-management. The evidence which has been C.W.P. No. 12665 of 2008. produced by the petitioner-management clearly show that the workman was not engaged by the petitioner-management and was employed by the contractor who was having full control and supervision over him. The attendance was being marked by the contractor and the pay was also given by the contractor. She contends that the Personnel Officer of the petitioner- management Shri Raj Kumar had appeared as M.W.1 before the Labour Court who had produced the attendance and wages registers from 1992 to 1999. As per the said records, Ram Sagar workman respondent was not on the rolls of the petitioner-management. For M/s Sovereign Manpower Consultant, Shri Tej Pal appeared as M.W.2 who was the brother of the owner and produced the records from March, 1998 to April, 1999, showing therein that the workman was working with them from March, 1998 to April, 1999. He further stated that the workman has worked for six days in the April 1999 with M/s Sovereign Manpower Consultant and on completion of the contract with the petitioner- management, the services of the workman was terminated. He further produced the payment of wages register as Ex. M.W.1/2. On this basis, counsel for the petitioner contends that there was no relationship of employer and employee between the workman and the petitioner and the findings as recorded by the Labour Court are totally unsustainable, and therefore, the award deserves to be set aside. Counsel for the respondent on the other hand contends that the workman was appointed and he joined as Peon with the petitioner- management on 03.01.1992. His services were terminated on 07.04.1999 alongwith 80 other workers. He contends that the management witness has admitted that the workman joined with the petitioner-management in the year -2- C.W.P. No. 12665 of 2008. 1992 and has thereafter taken a stand that he had resigned from the services of the petitioner-management and joined the service as employee of the contractor. He contends that the workman has been able to prove that he was as a matter of fact employed with the petitioner-management and continued with them as he has placed on record the stitching charges paid by the petitioner-management in the name of the claimant. He states that the management witness further admitted that stitching charges are only given to the regular employees and the workers of the contractor are paid Rs. 200/- only. He further contends that the passbook Ex. M.W.5 dated 23.08.1994 shows that he was the worker of the petitioner-management. E.S.I. card was placed on record as Ex.M.W.6 which further goes to show that the workman was an employee of the petitioner-management. He further contends that the civil suit, copy whereof has been placed on record as Ex.M.W.7 shows that the petitioner-management who has filed the civil suit contained names of all the workers of the contractor but the name of the workman was not mentioned there. He submits that his name was missing from the list of the contractor workers as he was infact the worker of the management. He further contends that except for the year 1998-1999, the records whereof has been produced by Shri Tej Pal Management Witness.2 for the Contractor, does not indicate that earlier also he was the employee of the contractor. The assertion of the contractor that the earlier record has been burnt by the workmen during the strike in the year, 1999, also does not hold the field as no complaint or F.I.R. was got registered by the contractor to justify that the record was indeed burnt. Nothing has been placed on record to prove that the workman had resigned from the service of the petitioner-management and joined the contractor. He states that it is an admitted position that the -3- C.W.P. No. 12665 of 2008. provisions of Section 25-F of the Industrial Disputes Act have not been complied with while terminating the services of the workman. The termination of the workman from service is illegal and therefore, the award passed by the Labour Court is fully justified and does not call for any interference. Counsel for the petitioner in response to the submission put forth by counsel for the respondent has submitted that the E.S.I. card which is alleged to have been produced by the workman and is placed as Ex. M.W.6 bears a code number which is not of the petitioner-management. The code number of the petitioner-management as per the card which has been produced by the employee Ex. M.W.6 is 7170723 whereas the code number of the petitioner-management is 14887. She further contends that as regards the contention raised by counsel for the respondent with regard to the name of the workman not finding mention in the civil suit filed by the management against the workers of the contractor Ex. M.W.7, the services of the workman was terminated on 07.04.1999 and the suit was filed on 08.04.1999. Since on the date when the suit was filed, the workman was not working with the contractor, therefore, there was no question of the name of workman being on the civil suit. I have heard counsel for the parties and have gone through the records of the case as well as impugned award. The period relevant for consideration as far as establishing of the relationship of master and servant with regard to the petitioner- management is concerned, is from the year 1992 till the year 1999. The petitioner-management had produced the attendance and wages register for this period and it is an admitted position that the name of the workman does -4- C.W.P. No. 12665 of 2008. not exist on those records. The M.W.2 namely Shri Tej Pal has produced on record the registration certificate as Contractor (Ex. M.W.1/2) which is of the year 1998. He has further produced the wages register as Ex. M.W.2/1 which clearly depicts the payment made to the workman by the contractor. He has on the basis of the records stated that the workman has worked with them from the year 1998 to April 1999 and further said that he has worked for six days in April, 1999 i.e. till April 6, 1999, the workman has worked with the contractor. The relevant period to be taken into consideration with regard to non compliance of the provisions of Section 25-F of the Industrial Disputes Act would be 12 months preceding the date of termination of the workman. That would obviously be from March, 1998 till April, 1999. The management witness appearing for the contractor has produced the relevant records for the said period, which proves beyond doubt that the workman was the employee of the contractor. The statements of the M.W.1 namely Raj Kumar, Personnel Officer of the petitioner-management and M.W.2 Tej Pal appeared for the contractor clearly show that the attendance was being marked by the contractor and so was the position with regard to the payment of wages. The supervision and the control was of the contractor and the contract was with regard to doing the job of loading and unloading of polymer papers. Therefore, all ingredients which would establish the relationship of employer and employee is existing and proved between the workman and M/s Sovereign Manpower Consultant. The evidence which has been produced on record by the workman to establish his relationship with the employer as an employee of the petitioner-management does not bear confidence. The receipt regarding stitching charges of the uniform paid by the petitioner-management in the -5- C.W.P. No. 12665 of 2008. name of the claimant alone cannot establish the relationship of employer and employee as the other evidence, reliance whereof has been made by the workman, do not prove the relationship at all. The bank account passbook was neither issued by the petitioner-management nor has it been alleged that the salary was being credited to his account by the petitioner-management. E.S.I. card Ex.M.W.6 of the workman bears a different code number from that of the petitioner-management. The civil suit which was filed by the management against the workers of the contractor not bearing his name, thus, showing that he was the employee of the management also does not help him for the reason that the workman continued in service with the contractor till 06.04.1999 whereas the civil suit was filed on 08.04.1999. On 08.04.1999 the date when the civil suit was filed, the workman was not an employee of the contractor and therefore, there was no question of his name being in the civil suit. All these things go a long way to establish that there was, as a matter of fact, no relationship of employer and employee between the respondent-workman and petitioner-management. There being no relationship of master and servant between the workman and the petitioner, the question of termination of services of the workman what to say of illegal termination does not arise. In this view of the matter, it cannot be said that the petitioner- management had violated the provisions of Industrial Disputes Act or that the petitioner was to comply with the provisions of Section 25-F of the Industrial Disputes Act with regard to respondent-workman. Thus, the award dated 14.02.2008 (Annexure-P-5), passed by the Industrial Tribunal- cum-Labour Court, Circle-I, Faridabad, cannot be sustained. -6- C.W.P. No. 12665 of 2008. The writ petition is allowed, the impugned award dated 14.02.2008 (Annexure-P-5) passed by the Industrial Tribunal-cum-Labour Court, Circle-I, Faridabad, is set aside. (AUGUSTINE GEORGE MASIH) JUDGE February 26, 2009. sjks. Whether referred to the Reporter – Yes/No.` -7-