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2019 Supreme(Kar) 1472
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R. DEVDAS, J.
H.V. Subramani S/o C. Venkataswamappa – Petitioner
Versus
The Management of M/s. Ranflex India Pvt. Ltd. – Respondent
Writ Petition Nos. 4952, 21205 of 2014
Decided On : 21-03-2019
Advocate Appeared:
For the Petitioner: Sri. T. Narayanaswamy.
For the Respondents: Sri. K. Kasturi, Sri. J. Kanikaraj, Sri. K.R. Anand.
Headnote:
Industrial Disputes Act, 1947 - Section 10 - Whether second party management is justified in refusing employment to first party workman as alleged - If not whether first party workman is entitled to be reinstated with full back wages continuity of service was alleged - To what relief first party workman is entitled - Whether first party proves that there exist relationship of employer and employee between second party First party - Whether first party further proves that second party has refused work to him - Whether second party proves that first party was employee of second party – Held, Senior Counsel submits that even assuming without conceding for sake of arguments that letter of appointment was issued by management condition that workman has to work labor contractor cannot be ignored - Senior Counsel submits that in counter statement management and respondent Enterprises who is contractor it was contended that workman was never appointed by Management but he was appointed by respondent contractor and was deputed by contractor to work respondent Management - It was specific contention of second party that workman was employed contractor salary ESI provident Fund and all other benefits were paid by contractor and therefore workman could not contend that he was employed Management - Senior Counsel has taken this Court through evidence placed before Tribunal such as Salary Certificate Allotment Statement regarding particulars of employees statements which show that till employees respondent contractor were paid salary in cash and thereafter salary of employees were credited to their respective Bank accounts Salary transfer advice given to bank for months of October November and December photo copy of Muster roll and wage register for period August to January such other documents to contend that respondents have placed all required materials to substantiate their contention that workman was indeed employed by contractor and was control and supervision contractor directly – Petition dismissed
ORDER :
1. These two petitions arise out of an award in I.D. No. 428/2006 passed by the I Additional Labour Court, Bengaluru, wherein the claim statement of the 1st party workman is allowed and a direction is issued to the 2nd party No. 1-Management to reinstate the 1st party workman into the service with continuity of service and other consequential benefits. The workman was also held to be entitled for 50% of the back wages. The management has filed W.P. No. 4952/2014 seeking to assail the award, while the workman has filed W.P. No. 21205/2014 seeking 100% back wages. Both these petitions are clubbed and heard together and disposed of by this common order.
2. It is the contention of the workman that he was appointed on 23.07.1996 by the respondent No. 1-Management and appointed as a confirmed employee. It is contended that he was working under the control of the respondent No. 1-Management, as Operator. It is contended by the workman that the Management paid the salary along with other benefits like attendance allowance, washing allowance and production incentives etc. It is contended by the workman that in the year 2004, the management started issuing pay slips and at that time, the workman did not notice that in the pay slips, the name of another establishment known as G&G Enterprises was mentioned in the pay slips. G&G Enterprises, the Contractor is respondent No. 2 herein. The workman contends that he requested the management to issue pay slip in the name of the management and not in the name of G&G Enterprises. It is further contended that on 08.11.2005, the security refused to allow the workman into the factory premises. Since he was persistently denied work, he sent letters dated 02.12.2005 and 24.01.2006 under certificate of posting requesting for job. It is further contended that the management did not budge and therefore, he was constrained to raise the dispute under Section 10(4-A) of the Industrial Disputes Act, 1947. It was contended by the workman before the Tribunal that denial of work tantamounted to retrenchment as defined under Section 2(OO) of the Industrial Disputes Act, 1947.
3. After issuance of notice, the Management entered appearance and filed the counter statement and also filed an impleading application seeking impleadment of G&G Enterprises. The said application, though objected by the workman, the Tribunal allowed the application and G&G Enterprises was impleaded as 2nd party. The workman examined himself as WW-1 and got 15 documents marked as Exs.W1 to W15. The 2nd party examined 2 witnesses, one being the Deputy General Manager and the other was the Proprietor of G&G Enterprises. 27 documents were marked on behalf of the management which were marked as Exs.M1 to M27.
4. The following issues and additional issues were framed by the Tribunal:
1. Whether second party management is justified in refusing employment to the first party workman as alleged?
2. If not, whether first party workman is entitled to be reinstated with full backwages, continuity of service was alleged.
3. To what relief, first party workman is entitled?
Additional Issues
4. Whether first party proves that there exist relationship of employer and employee between second party (1) and First party?
5. Whether first party further proves that w.e.f. 8.11.2005, second party (1) has refused work to him?
6. Whether second party (1) and (2) proves that first party was and employee of second party (2)?
7. Whether second party (2) further proves that w.e.f. 8.11.2005 first party has stopped coming to work?
5. The learned Senior Counsel Sri. K. Kasturi appearing for the Management submits that the Tribunal, after having noticed that the workman failed to produce any document to substantiate his contention that he was directly employed by the management and that he received salary from the management and after having noticed that the copy of the appointment order dated 23.07.1996 was not produced in the original, erred in holding that the workman has p
