The need for the petitioner to plead and prove a sham and camouflage contract between the principal employer and the employee.

V. Kameswar Rao, J. (Oral)

CM No. 1669/2014 (for condonation of delay)

This is an application seeking condonation of delay of 201 days in re-filing the writ petition.

For the reasons stated in the application, the same is allowed.

W.P.(C) 834/2014

1. The petitioner, Shailesh Kumar Pandey impugns Award dated October 05, 2012 passed by the Industrial Tribunal No.1, Karkardooma Courts, Delhi, whereby the Industrial Tribunal holds that the petitioner is not entitled to any relief as he is an employee of the contractor.

2. It was the case of the petitioner before the Industrial Tribunal that he was employed as Security Guard in July, 1989 and his services were terminated by the respondent No.1 verbally on October 04, 1997 without giving wages for the month of September, 1997. According to him, no notice was given to him nor pay in lieu of notice or any retrenchment compensation was made.

3. The case of the respondent No.1 M/s Research & Assessment Centre was that no relationship of employer employee exist between it and the petitioner. He was never engaged by the Centre. He was an employee of M/s Rishi Raj Management Services, which was engaged by the respondent No.1 to carry out the watch and ward services. According to the respondent No.1, it is the contractor who had terminated the services of the petitioner. That apart it is the case of the respondent No.1 that it is not an “industry” within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (‘Act’in short).

4. The Industrial Tribunal primarily considered the claim of the petitioner from two aspects i.e. whether the respondent No.1 is an “industry” within the definition as given in the Act and whether there exist a relationship of employer employee between the petitioner and the respondent No.1.

5. On the aspect of “industry”, the Industrial Tribunal was of the view that the respondent No.1Centre had no where mentioned the activities as being carried out by it. It took into consideration the affidavit Ex.MW1/A tendered by Mr.Krishan Kumar, wherein he simply details that the provisions of the Act are not applicable to the respondent No.1. It is also stated that the Centre is only engaged in recruitment and appointment of Scientists at all levels. The Tribunal was of the view that the recruitment and assessment of work of Scientists shows that the Centre contributes its skill and knowledge for production of resources relating to recruitment and assessment of work. Suffice would it be to say, relying upon various judgments of the Supreme Court including the judgment in Banglore Water Supply & Sewerage Board, 1978 Labour Industrial Cases 778, the Tribunal was of the view that the triple tests are supplied and activities of the Centre fall within the ambit of the industry.

6. I may only state that this conclusion of the Tribunal has not been challenged by the respondent No.1. On the aspect whether there exist relationship of employer and employee between the parties, the Tribunal after referring to the judgment of the Supreme Court in the case of Steel Authority of India Ltd. and Ors.vs. National Union Water Front Workers and ors., 2001 (7) SCC 1, Shivnandan Sharma vs. The Punjab National Bank Ltd. (1955) I LLJ 688, Gujarat Electricity Board, Thermal Power Station, UKAI, Gujarat vs. Hind Mazdoor Sabha & Ors., (1995) 5 SCC 27 has concluded as under:

“39. The Contractor undertook the obligation to provide uniform and identity card to its employees. Identity cards were to be surrendered to the Estate Manager of the Centre on completion of the contract period. Contractor was enjoined with a duty to select watch and ward personnel after the verification of their antecedents. The employees so engaged were to be treated employees of the contractor with no liability on the part of the Centre. It was the contractor who was supposed to pay their wages. Employees of the contractor were to work for eight hours a day and six days in a week. Supervisor for watch and ward staff was al