IMPORTANT POINT
In determining the relationship of employer and employee control is one of the important tests but is not to be taken as sole test.

Headnote:LABOUR LAW - Appellants, trained electricians and skilled workmen were employed through Contractors for jobs connected with sub-station set up to maintain electricity supply to Medical College and hospital of respondent State-Claim for regularisation of their services in Administration-CAT rejected their petition and High Court dismissed the writ-Appeal-For determination of relationship of employer and employee, control is one of important tests but is not the sole test-Multiple pragmatic approach to be adopted- Interrogation" test to see whether person was fully integrated into employer s concern or remained apart-Question is essentially of fact to be determined on basis of features of relationship, written terms of employment and actual nature of employment-It has to be raised and proved before industrial adjudicator-Impugned judgment suffered no illegality.
       Held : In determining the relationship of employer and employee, no doubt control is one of the important tests but is not to be taken as the sole test. In determining the relationship of employer and employee all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole `test of control . An integrated approach is needed. `Integration test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer s concern or remained apart from and independent of it. The other factors which may be relevant are - who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the `mutual obligations between them (see Industrial Law - Third edition by I.T. Smith and JC Wood - at pages 8 to 10). Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment if any, and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. (Paras 15 and 16)
       In view of clear and binding pronouncement of law by the Constitution Bench of this Court in the case of Steel Authority of India (supra), in the present appeals which arise from writ petitions preferred against the adverse judgment of the Central Administrative Tribunal (CAT), none of the reliefs, as prayed for, can be granted to the employees. Without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the Contractor and the contract employees, no relief can be granted. (Para 20)

JUDGMENT

Dharmadhikari, J.-The Department of Engineering, Chandigarh Administration, is maintaining electricity supply to the Government Medical College and Hospital, Chandigarh. It has established a sub-station for that purpose.

2. All the appellants in this batch of appeals are trained electricians and skilled workmen. They have been employed through different Contractors for various jobs connected with the sub-station set up to maintain electricity supply.

3. The employees working at the sub-station in the Medical College and Hospital premises approached the Central Administrative Tribunal, Chandigarh with a prayer that the work of the employees for maintaining supply of electricity in the College and Hospital premises being of a perennial nature, the Engineering Department of Chandigarh Administration be directed to regularise their services in the Administration. By its detailed judgment passed on 13.8.1988 the Tribunal rejected the petitions filed by the employees on merits as also on the ground that the employees engaged through contractor cannot be held to be holders of civil post as defined under Section 3(q) of the Administrative Tribunals Act hence the Tribunal has no jurisdiction to grant any relief.

4. The employees then filed separate Writ Petitions under Article 227 of the Constitution in the High Court of Punjab and Haryana which have been dismissed by the impugned common judgment passed on 3.8.2000.

5. The contention advanced by the contract employees before the High Court was that although they were employed on various jobs by the Contractor for maintaining supply of electricity to the College and Hospital the Engineering Department of the Chandigarh Administration exercises complete control over their work. According to them the real employer is the Engineering Department of the Chandigarh Administration and the Contractor has been introduced only to pay them salary or wages. It was argued that in order to deny the employees benefits of regular employment under Chandigarh Administration, the agency of Contractor has been resorted to. The employees sought annulment of the order of the Tribunal and in the alternative sought issuance of directions for consideration of their cases for regularisation of their services under the Chandigarh Administration. They also sought directions to prohibit by issuance of a notification under the provisions of the Contract Labour (Regulation and Abolition) Act 1970, engagement of labour through contractor for maintaining electricity supply to the government hospitals and other college premises.

6. In this batch of appeals, learned counsel appearing for the employees have drawn our attention to certain conditions of the contracts which have been awarded to various Contractors for maintaining supply of electricity. Reading those contentions of the contract, it is argued that they clearly indicate that Engineering Department of Chandigarh Administration has retained complete control on the employment, work and continuance of service of the contract labour. It is further argued that maintenance of supply of electricity to hospital and college premises being a work of permanent and perennial nature, employment of the staff for it through contractor is an unfair labour practice.

7. The respondent Chandigarh Administration has not disputed the fact that the maintenance of electricity supply to the Hospital and College building is under the Engineering Department of Chandigarh Administration. Its case is that the Engineering Department of Chandigarh Administration does not have adequate maintenance staff to execute the job, hence the work has been awarded to Contractors through the process of tender. With regard to the certain terms of the contract it is explained that to ensure efficiency and quality of work, which is of a technical nature to be carried under technical guidance and as the Contractors availability at the site for all twenty four hours is not possible, work of supervision

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2003 Supreme(SC) 1119

IMPORTANT POINTIn determining the relationship of employer and employee control is one of the important tests but is not to be taken as sole test.

Cases Referred (5)

IMPORTANT POINT
In determining the relationship of employer and employee control is one of the important tests but is not to be taken as sole test.