A workman engaged through a contractor is covered under the definition of workman of the principal employer and the principal employer is liable to follow provisions of the Industrial Disputes Act, 1947 before affecting retrenchment.

Ajay Rastogi and J.K. Ranka, JJ.

Instant intra court appeal has been preferred against order of the learned Single Judge dated 6-11-2013 confirming Award of the Labour Court dated 23-3-2011.

2. However, office has pointed delay in filing present special appeal in support thereof application has been filed seeking condonation of delay u/S 5 of Limitation Act.

3. Notices are duly served but no-one has put in appearance on behalf of the respondent-workman despite service.

4. We have heard counsel for appellant on the application seeking condonation of delay u/S 5 of Limitation Act and find that the delay has been satisfactorily explained, duly supported by affidavit and deserves to be condoned.

5. Accordingly, the application seeking condonation of delay u/S 5 of Limitation Act stands allowed and the delay is condoned.

6. Brief facts of the case as noticed by the Ld. Labour Court in its award impugned dated 23-3-2011 are that the respondent-workman was engaged on daily wages basis in the Guest House of appellant-MDS University, Ajmer from 1-1-1998 and was paid Rs. 22/- per day and discharged his duties upto 10-1-2006, however, during the interregnum period his daily wage from time to time was increased from Rs. 22/- to Rs. 32/-, to Rs. 60/- and finally at the time when his services came to be dispensed with he was getting Rs. 73/- per day. After the dispute being raised the Government made reference vide its notification dated 15-11-2007. We consider it appropriate to quote the reference made by the Government for adjudication of the dispute, which reads ad infra :-

^^D;k izkFkhZ dks vikFkhZ }kjk Jfed ds :i esa fu;ksftr fd;k Fkk \ ;fn ;gka gka rks] D;k dqylfpo] egf"kZ n;kuan ljLorh fo'kofo|ky;] vtesj }kjk Jh xqekuflag jkor iq= Jh ikapwflag dks fnaukd 10-1-2006 ls lsok i`Fkd djuk mfpr ,oa oS/k gS \ ;fn ugha rks] Jfed fdl jkgr dks izkIr djus dk vf/kdkjh gS \**

7. The case set up by the respondent-workman in his statement of claim is that he was engaged on daily rate basis w.e.f. 1-1-1998 in the University Guest House and initially was paid Rs. 22/- per day and at the time when his services came to be dispensed with in January, 2006 was getting Rs. 73/- per day and placed the available documentary evidence in support of his claim which he could be able to collect and as there was bald denial by the appellant University in their written statement even in regard to his engagement & the workman alleged that he had worked from January,1998 to January,2006 and while denying his claim the appellant-employer alleged that he was not even engaged.

8. The Ld. Labour Court after taking note of the primary & secondary evidence which came on record, in para-12 & 16 of the Award impugned recorded finding of fact based on the documentary evidence, supported by the statement of the claimant, arrived to a conclusion that the workman had worked for the period from January,1998 to January,2006 and was paid wages and while holding that the workman had worked for 240 days in the preceding 12 months held that there was violation of Section 25F of the Industrial Disputes Act,1947 ("Act,1947") & accordingly while answering the reference in affirmative terms passed the award impugned dated 23-3-2011 holding the workman entitled for reinstatement with continuity of service & 50% back wages, which was the subject matter of challenge by filing writ petition at the instance of the appellant-employer before the learned Single Judge and the only submission made by the appellant was that engagement of the respondent-workman was through contractor and he has wrongly been treated to be employee of the University and such engagement was otherwise not on permanent basis but only engaged through contractor for intermediate period, hence award for reinstatement along with 50% back wages may not be valid & justified.

9. The Ld. learned Single Judge under its order impugned made a reference of the term 'workman' u/S 2(s) as exits in the State amendment vide Rajasthan Act