The main legal point established in the judgment is the application of the six tests prescribed by the Apex Court for determining the existence of an employer-employee relationship, which influenced the court's decision in finding the Workman wrongfully terminated and awarding lumpsum compensation.

JUDGMENT :

1. These cross petitions are filed by the employer-Chalet Hotels Ltd. and workman-Bhikan Laxman Deokar challenging the Award dated 29 January 2019 passed by the Presiding Officer, 7th Labour Court, Mumbai in Reference (IDA) No. 20 of 2012. The Labour Court has answered the Reference partly in affirmative and has set aside the termination order dated 28 December 2010 with further direction to the employer to reinstate the workman with continuity and 50% backwages to be computed on the basis of last wages drawn by him.

2. Chalet Hotels Ltd. operates a star category hotel under the brand name, ‘Renaissance Mumbai Hotel & Convention Centre’, which is referred to in the judgment as ‘the Hotel’. It is the case of the Hotel that it provides transportation services for catering to the needs of its patrons by engaging services of third party vendors on profit sharing business. That the transportation facility was earlier run and managed by M/s. Hertz Carzon Rent and thereafter by M/s. K S Enterprises and thereafter by M/s. Karma Management Consultant Pvt. Ltd and lastly M/s. Orix Auto Infrastructure Services Ltd. was engaged by the Hotel. That those agencies provided for transportation services to the patrons of the hotel by deputing its own resources like chauffeurs, drivers as well as vehicles. Additionally, the Hotel also has its own vehicles which were also used by the agencies.

3. Mr. Bhikan Laxman Deokar (Workman) has worked as Driver for catering transportation services to the patrons of the Hotel. There is some degree of debate between the parties about the nature of his initial engagement. The workman claims that he was initially recruited directly by the Hotel on 2 February 2002 and that he worked as direct employee of the Hotel till 3 February 2003. Thereafter, he was engaged through the Contractor M/s. K.S. Enterprises from 4 February 2003 to 6 February 2005 and through M/s. Karma Management Consultants Pvt. Ltd from 7 February 2005 to 1 July 2007. From 2 July 2007 onwards, he was engaged through the Contractor- M/s. Orix Auto Infrastructure Services Ltd. (Orix). Based on the show cause notice, services of the Workman came to be terminated by Orix vide letter dated 28 December 2010 with immediate effect by paying one month’s salary in lieu of notice. Aggrieved by his termination, the Workman raised a demand for reinstatement, which led to an order of Reference made by the Deputy Labour Commissioner, Conciliation, Mumbai. The Reference was for reinstatement of the Workman with continuity and backwages from 5 August 2010. The Workman filed his Statement of Claim before the Labour Court against the Hotel, as well as the Contractor-Orix and challenged termination order dated 28 December 2010 and sought reinstatement in service with full backwages, permanency and continuity of service with the Hotel w.e.f. 5 August 2010. He also sought a declaration that the contract between the Hotel and Orix was sham and bogus. The claim was resisted by the Hotel as well as by Orix by filing their respective written statements. Based on the pleadings, issues were raised by the Labour Court on 22 October 2012 as under:

(1) Whether second party is a workman ?

(2) Whether the enquiry conducted by the enquiry officer is fair and proper ?

(3) Whether the findings recorded by the enquiry officer are perverse ?

(4) Whether the services of the second party workman is illegally terminated ?

(5) Whether second party is entitled to relief claimed as sought ?

(6) What order ?

4. The parties led evidence before the Labour Court. At the time of delivering the judgment, the Labour Court felt that Issues Nos. 2 and 3 were not relevant and required to be deleted. Accordingly, issues were recast as under :

1) Whether second party proves that there was existence of employer-employee relationship in between him and first party no.1?

2) Whether the services of the second party workman is illegally terminated?

3) Whether second party is entitled to relief as sought?