IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4555 of 2003 Date of decision:16.11.2009 National Fertilizers Limited and another ... Petitioners Versus Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and others. ...Respondents Present: Mr. Nilesh Bhardwaj, Advocate, for Mr. Mukul Aggarwal, Advocate, for the petitioners. Mr. Amandeep Singh, Advocate, for Mr. G.S.Hooda, Advocate, for respondent No.2. ---- CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The order under challenge is a direction for reinstatement and back wages to a workman, who claimed that he had been continuously employed as a Peon-cum-Messenger since 27.04.1991 till he had been illegally terminated from service on 31.03.1996. The contention in defence by the management was that the workman had been previously appointed on contract on 27.04.1991 which was periodically extended upto 10.11.1992 when his services stood terminated. In the respective orders of appointment, it had been specifically stated that the services were for a fixed period on purely Civil Writ Petition No.4555 of 2003 - 2 - ad hod basis and that the termination of the contract could be done without any notice. The nature of work was that the workman shall be responsible for distribution of dak within and out of office, opening and closing of the office premises, supply of drinking water and any other assignment given to him by office in-charge from time to time. It appears that the very engagement of the workman was sought to be done through a contractor and the contention of the workman however was that he had been working only under the management and that it was the management which was paying his regular wages. 2. Before the Labour Court, the management questioned the reference itself was bad in that the management was a Government of India undertaking and that the 'appropriate Government' was only the Central Government. The reference made by the State of Haryana was not competent. The further contention of the management was that there had no master and servant relationship and the wages had been paid only through a contractor Ravi Kumar Agencies and even the workman had admitted that the contract period ended upto 31.03.1996. To him, the termination of service that was occasioned was not retrenchment within the definition of Section 2(oo) of the Industrial Disputes Act and therefore, the workman cannot have any remedy before the Labour Court complaining of non-compliance of Section 25-F of the Industrial Disputes Act. The further contention was that the workman had not completed 240 days of continuous service. 3. The Labour Court rejected the objection of the management with reference to consideration of the dispute, regarding the 'appropriate Civil Writ Petition No.4555 of 2003 - 3 - Government' by pointing out that the management had not produced any document to show the degree of the control of the Central Government and held therefore the reference by the State Government was proper. On the issue relating to the subsisting relationship between the master and the servant, the Court found that the workman had produced before Court the payment of wages and produced Mark-A, which was the wages register and Mark-B, which was T.A. Bill. Adverting to a decision of the Hon'ble Supreme Court in Gopal Krishanji Ketkar Versus Mohamed Haji Latif and others-AIR 1968 Supreme Court 1413, the Court drew an adverse inference for non-production of the relevant records and held under the same Head that the non-production also meant that the important evidence relating to the number of days which the workman had worked had not been deliberately produced by the management. 4. The learned counsel appearing for the management contends with reference to the decision of the Hon'ble Supreme Court in Steel Authority of India Versus National Union Water Front Workers-2001 (4) SCT 1, that 'the appropriate Government' in relation to an establishment under the Contract of Labour (Regulation and Abolition) Act, 1971, is the same as the Central Government in relation to an 'industry' carried on under the authority of Central Government, the Central Government alone will be the appropriate Government. The learned counsel appearing for the respondent joins issues on this by referring to the very same judgment that makes reference to the decision of the earlier decision of the Hon'ble Supreme Court in Heavy Engineers Mazdoor Unions Versus State of Bihar and others-1969(1) SCC 765 Civil Writ Petition No.4555 of 2003 - 4 - and M/s Hindustan Aeronautics Limited Versus the Workmen-1975(4) SCC 670, which lay down that the mere fact that the entire share capital is contributed by the Central Government or the fact that the shares are held by the President of India and certain officers of the Central Government shall not make any difference and in the absence of a statutory provision, a commercial corporation acting on its own behalf, even though it was controlled wholly or partially by a Government department would ordinarily be presumed not to be a servant or an agent of a State and the inference that the Corporation was an agent of the Government must be drawn only when it was performing in reference to governmental and not commercial functions. I do not want to be detained on this issue except to record the fact that the issue was argued but then the Labour Court was justified in rejecting the plea of the management by reference to the fact that no document had been produced before the Court below to prove the State of control of the Central Government. I confirm the findings with reference to the validity of the reference as rendered by the Labour Court. 5. As regards the subsistence of relationship between the master and servant, it bears out from the management’s contention that the workman had been employed under them initially from 27.04.1991 till 1992, but with regard to continuance of service after 1992, the only documents that had been produced before the Court, as far as the management was concerned were that the payments that they had periodically made through cheques to M/s Ravi Kumar HNT Contractor during the relevant period of 12 months prior to 31.03.1996. All these Civil Writ Petition No.4555 of 2003 - 5 - exhibits were marked as M-1 to M-13. While it is definitely relevant that a public sector undertaking could not have appointed a contractor without registering him under Contract Labour (Regulation and Abolition) Act, (CLRA), it answer only one side of the question that if it did not register (i) it shall result in penal action under the Act; (ii) it will provide to the workman evidence to show that the so-called engagement through independent contractor was not true. It is essentially a question of fact as to how the evidence is adduced and how the Labour Court has appreciated. Here in this case apart from a reference to exhibits M/1 to 13, there is no discussion as to how the documents went to discount the contentions raised by the workman. If the contention of the workman had been that the management had at all times raised the bogey of contractual employment only as a measure of unfair labour practice while they had actually employed the workman directly, it shall be possible to examine the whole thing and draw an inference from the fact that the independent contractor had not been registered or no licence had been given under CLRA Act. In the absence of such a plea, the manner of engagement will have to be seen only from what the documents speak. Copies of Mark-A and B have been relied on by the Labour Court to say that the wages had been paid directly to the workman. The documents Mark-A and B which the workman had produced had merely recorded some statement in a type written form for receipt of amounts for various months upto 30.03.1996. The document does not contain the signature of any person from the management. The learned counsel appearing for the respondent however points out that the receipts had been produced Civil Writ Petition No.4555 of 2003 - 6 - before the lower Court as WW-2/22 to 47 that showed amounts have been received by the workman from the management NFL on account of ad hoc contract for Peon-cum-Messenger service for various periods. 6. The documents make it clear that the wages had been paid to the workman at various times at least upto March, 1995 directly by the management and receipt had been obtained from the workman. The management however appears to have made that payment in August, 1995 through M/s Ravi Kumar and the evidence through M-1/6 to M- 1/13 merely record the fact of payments of bill but does not record any fact that it was paid for the purpose of particular workman or for the purpose of particular service for which the services of the workman could have been obtained. When the documents do not show conclusively the nature of engagement and when there are two opinions possible, the Labour Court’s finding that the workman had been directly employed under the management ought to obtain affirmation from this Court. 7. The issue that has to be still seen whether the workman would be entitled to a claim for reinstatement by the fact that the workman had not been terminated in the manner provided under Section 25-F of the Industrial Disputes Act. For all the period when the workman was employed, it can be seen that the engagement had always been ad hoc or temporary. It is a public sector undertaking and it is not very clear from the evidence whether there exists any particular cadre for continuation of employment of this category of workman. The nature of work which had been given was delivery of letters to the post office Civil Writ Petition No.4555 of 2003 -7 - and opening or closing of the office doors at the relevant hours. The workman had admittedly worked from the year 1991 to 1992 and still later, the workman had claimed that he had worked upto the year, 1996. For 5 years of service which he had put in and the termination that has taken place in the year, 1996, having further regard to the length of litigation that had gone through, in my view, the appropriate relief shall be to compensate the workman to the tune of Rs.75,000/- instead of securing to him the relief of reinstatement. The award of the Labour Court is, under the circumstances, modified and it shall provide for the relief of compensation of Rs.75,000/- in lieu of reinstatement and back wages, which amount shall be paid to the workman within a period of 4 weeks from the receipt of the copy of this order, failing which the amount as determined shall attract interest at 9% per annum. The writ petition is disposed of in the above terms. (K.KANNAN) 16.11.2009 JUDGE sanjeev