1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4286/2002. : : Jakir Hussain Vs. Union of India & Anr. : : Date of Order 19.11.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Suresh Kashyap for the petitioner. Mr.Ganesh Sharma for the respondents. Heard learned counsel for the parties. Petitioner has filed this writ petition challenging the order dated 15.3.2002 by which, the Government of India, Ministry of Labour (for short “appropriate government”) declined to make reference on his request to the concerned Industrial Tribunal/Labour Court. Shri Suresh Kashyap, learned counsel for the petitioner has argued that the appropriate government erred in law in refusing to make reference to the Industrial Tribunal/Labour Court on the ground that the petitioner could not prove that he was appointed by the Management, Rajasthan Atomic Power Station. This fact could be proved by leading evidence both by the petitioner as well as respondent No.2. Learned counsel referred to Annexure-6, a document 2 signed by Mechanical Maintenance Engineer of the respondent No.2, Shri V.K. Thakur, which contains name of the petitioner at Serial No.1. It was argued that Shri V.K. Thakur used to take attendance of the petitioner which fact is evident from the document i.e. attendance sheet at Annex.7. Learned counsel argued that whether or not the petitioner was employee of the respondent No.2 or consequently if he was engaged to work through the contractor has to be determined by the Industrial Tribunal/Labour Court. Learned counsel in this connection submitted that there are number of judgments of Supreme Court on this question which holds to the effect that Court is competent to peirce the veil to find out whether the medium of contractor was devised as a comflous or whether master and servant relationship existed inspite of the existence of such contract. All these questions would have been decided on the basis of evidence that would have been led before the concerned Industrial Tribunal/Labour Court if ultimately the industrial dispute would have been referred to it for adjudication. Learned counsel for the respondents argued that even from documents Annexs.6 & 7, it is evident that work was in the nature of job of contract which was awarded to M/s. D.H. Kutty. It had to provide EOT/Mobile Crane 3 Operators to respondent No.2. So far as the petitioner is concerned, he was not able to prove that he was appointed by respondent No.2. Hence, there was no case for making reference of industrial dispute either to the Industrial Tribunal or the Labour Court. The appropriate government was justified in refusing the prayer of the petitioner for making reference. I have given my anxious consideration to the rival submissions of the parties and perused the material forming part of the record. The factual controversy which has arisen in the present case is whether or not the petitioner was engaged by the respondents and if so, even inspite of respondent's showing that the petitioner was engaged through contractor, the Court is competent to take into consideration the evidence of a given case for arriving at a conclusion whether the workman could be still treated as employee of employer- respondent No.2 or he would be treated as such employee of the contractor, M/s.D.H. Kutty. All these issues could have been determined by the concerned Industrial Tribunal/Labour Court on appreciation of evidence that would have been led by the parties if reference was made to it. Petitioner could prove that he worked under the direct control and 4 supervision of the respondent No.2 or their officers. The Industrial Tribunal or the Labour Court might even decline to accept his version that he should be treated as employee of the contractor. But all that would be dependent on the evidence led before the concerned Industrial Tribunal/ Labour Court, which as per the law on the subject is competent to take its own view. The appropriate government, in my considered view, could not have pre- empted the issues and could not by itself to presume record a finding that the petitioner was not an employee of respondent No.2. The refusal by the appropriate government to make reference to the Industrial Tribunal/the Labour Court, in my view, has to be held illegal being not in conformity with Section 10 & 12 (5) of Industrial Disputes Act, 1947. In the result, the impugned-order dated 15.3.2002 is quashed and set aside. The matter is remitted back to the appropriate government for making reference to the concerned Industrial Tribunal/Labour Court in accordance with law. An appropriate order in compliance of this judgment be passed within three months from the date its copy is produced before them. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.29.