The mere issuance of a prohibition notification under Section 10 of the CLRA Act does not automatically lead to the absorption of contract labour as employees of the principal employer; such a determination must be based on the specific facts and evidence presented.

JUDGMENT :

YASHWANT VARMA, J.

1. This Letters Patent Appeal[LPA] is directed against the judgment rendered by the learned Single Judge on 19 February 2013 in terms of which an Award rendered by the Industrial Tribunal[Tribunal] has come to be upheld. In terms of the Award dated 05 October 2005, the petitioner-appellant was directed to frame a policy of regularisation in respect of the respondent workmen. Both the Tribunal as well as the learned Single Judge have essentially held against the appellant on the ground that the engagement of the respondent-workmen through a contractor was merely a ruse to overcome the obligations which would have stood attached in case it were to be recognized to be the principal employer.

2. For the purposes of evaluating the challenge which stands raised, it would be apposite to firstly take note of the reference which was made to the Tribunal by the appropriate government:-

“Whether Shri Perumal and 25 others workmen whose names are shown in Annexure 'A' are entitled to regularization and wages at par with their regular counterparts in the post of Houseman/ Safaiwala. If so, what directions are necessary in this respect?”

3. The respondent-workmen pursuant to the dispute being referred to the Tribunal had filed a Statement of Claim in which the following allegations were levelled:-

“2. That the workers are working continuously from the dates mentioned in Annexure-A though the Management have been changing the contractor from time to time. Initially in the year 1995 the Management of Ashok Hotel gave contract to M/s.Sparkling Enterprises till-1999 and after that M/s. Helplines Hospitality and M/s. Office Care also functioned upto 17.6.01 and after 17.6.01, again M/s. Sparkling Enterprises is functioning in Ashok Hotel till today.

3. M/s. Sparkling Enterprises has no agreement with the Management of Ashok Hotel and functioning illegally and unlawfully.

xxxx

xxxx

xxxx

8. That the job carried over by the workers is on perennial nature and belong to the hotel industry and workers are also working continuously.

9. That the concerned workers are doing the same job which is carried over by permanent safaiwala/Houseman who are working in Ashok Hotel.

10. That the concerned workers have completed 240 days in each calendar year and are entitled to be regularized on permanent job with the Management of Ashok Hotel from the day they are working in the Hotel.

xxxx

xxxx

xxxx

20. That the Management of Ashok Hotel is a principal employer in this case and M/s. Sparkling Enterprises as a contractor working in the Hotel without any agreement, illegal and unlawfully.

Prayer:- It is therefore most respectfully prayed the Management of Ashok Hotel may be directed to regularize all the workers as per Annexure-A on permanent jobs in Ashok Hotel from the day they are working in Ashok Hotel. M/s. Sparkling Enterprises should also be directed to pay the Bonus, Double salary of National Holidays arrears.”

4. Based on the evidence which came to be led by respective sides, the Tribunal proceeded to frame the following issues for consideration:-

“6. On the pleadings of the parties, the following issues were framed:-

1. Whether there is relationship of employer and employee between the management no. 1 and the workmen. If not, its effect.

2. Whether the Industrial Disputes Act is not applicable? If so, its effect.

3. Whether Delhi Government is not the appropriate Government to send the reference? If so, its effect.

4. Whether the dispute has been properly and validly espoused? If not, its effect.

5. Whether demand notice was sent before raising the dispute? If not, its effect.

6. To what relief, if any, and from which of the managements per the terms of reference, the workmen are entitled to?”

5. Upon consideration of the stand taken by respective sides, the Tribunal while dealing with issue no.1 came to render the following findings:-

“15. The averments made by workmen in the statement of claim that they are working at Ashok Hotel is not specifically d