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2018 Supreme(Raj) 2260
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Ashok Kumar Gaur, J.
Management M/s. Cimmco Birla Limited - Appellant
Versus
State Of Rajasthan - Respondent
Civil Writs No. 2766 of 1996
Decided On : 01-06-2018
Ms. Anita Agarwal, Adv., for the Petitioner; Mr. S.K. Singodia and Mr. Anshul Sharma, Advs., for the Respondents
The relevant factors to establish an employer-employee relationship include who appoints the workers, who pays the salary/remuneration, who has the authority to dismiss, who can take disciplinary action, whether there is continuity of service, and the extent of control and supervision.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 25F - CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970 - SECTION 12(2) - ADVERSE INFERENCE - RELATIONSHIP OF EMPLOYER AND EMPLOYEE - FACTORS TO DETERMINE - REGISTRATION OF CONTRACTOR - LICENSE OF CONTRACTOR - TERMINATION OF SERVICE - REINSTATEMENT OR COMPENSATION.
Fact of the Case:
The petitioner-employer challenged the Labour Court's award, which found that 12 workmen were entitled to reinstatement and compensation for violation of Section 25F of the Industrial Disputes Act, 1947 (ID Act), while rejecting the claims of 20 other workmen. The Labour Court had drawn an adverse inference against the employer for non-production of records relating to the workmen's employment.
Finding of the Court:
The High Court held that the Labour Court erred in drawing an adverse inference against the employer since it had previously dismissed the Union's applications for summoning the records. The Court found that the Labour Court's finding that the workmen were employees of the petitioner-company was not supported by evidence, as the relevant factors to establish an employer-employee relationship, as laid down by the Supreme Court, were not fulfilled. The Court also held that the Labour Court erred in treating the Contractor as an employee of the petitioner-company, as the Contractor had a valid license under the Contract Labour (Regulation and Abolition) Act, 1970.
Issues: 1. Whether the Labour Court erred in drawing an adverse inference against the employer for non-production of records. 2. Whether the Labour Court's finding that the workmen were employees of the petitioner-company was supported by evidence. 3. Whether the Labour Court erred in treating the Contractor as an employee of the petitioner-company.
Ratio Decidendi: 1. The High Court held that the Labour Court erred in drawing an adverse inference against the employer since it had previously dismissed the Union's applications for summoning the records. The Court relied on the principle that an adverse inference can only be drawn when a party fails to produce relevant evidence that is within its control. In this case, the employer had already been denied the opportunity to produce the records by the Labour Court's dismissal of the Union's applications. 2. The High Court held that the Labour Court's finding that the workmen were employees of the petitioner-company was not supported by evidence. The Court applied the test laid down by the Supreme Court in Balwant Rai Saluga (supra) to determine the relationship of employer and employee. The Court found that the workmen had not produced any evidence to establish the relevant factors, such as who appointed them, who paid their salaries, who had the authority to dismiss them, and the extent of control and supervision exercised by the petitioner-company. 3. The High Court held that the Labour Court erred in treating the Contractor as an employee of the petitioner-company. The Court noted that the Contractor had a valid license under the Contract Labour (Regulation and Abolition) Act, 1970, which authorized him to employ workers. The Court held that the mere fact that the Contractor's ESI deductions were made by the petitioner-company did not establish an employer-employee relationship between them.
Final Decision: The High Court allowed the writ petition and quashed the Labour Court's award. The Court held that the Labour Court had erred in drawing an adverse inference against the employer, in finding that the workmen were employees of the petitioner-company, and in treating the Contractor as an employee of the petitioner-company.
JUDGMENT
Ashok Kumar Gaur, J. - The instant petition has been filed by the petitioner-employer challenging award dt 25.5.1995 (Annex.42) passed by the Labour Court, Bharatpur. The petitioner has also challenged the corrigendum dt. 14.4.1980 (Annex. 3), whereby the Government had amended the terms of reference in the original reference dt. 11.1.1979, raised u/Sec. 10 of the Industrial Disputes Act, 1947 (in short "the ID Act").
2. The Labour Court, Bharatpur in its award dt. 25.5.1995 has rejected the claim of 20 workmen namely Veerbal, Shivcharan, Laxman, Bihari, Mahaveer, Vijay, Kishan Singh, Radha Kishan, Khilkiya, Bishan, Golo, Vinay Singh, Guthro S/o Amar Singh, Bhagwan Singh, Pooran, Phaguni, Dharam Singh, Man Singh, Shankar, Madan & Nekram.
3. The claim in respect of 12 workmen namely Bhagwan Singh, Shibbo, Ramjilal, Tej Singh, Tota Ram, Bhim Singh, Lachman, Motiram, Man Singh, Jhamman, Deen Dayal & Baney Singh has been allowed and termination of their service has been found in violation of Sec. 25F of the ID Act.
4. The brief facts of the case are that the State Government in exercise of its power u/Sec. 10 of the ID Act vide order dt. 11. 1.1979 made a reference to the Labour Court for adjudication as whether the employees listed in schedule were employees of the Contractor-Chhagan Lal and whether removal from service of such employees was legal and valid. The term of reference is quoted as hereunder:-
^^D;k layXu lwph ds Jfed Jh Nxu yky Bsdsnkj fledks fyfeVsM] Hkjriqj ds ;gka dk;Zjr Fks\ ;fn gka rks D;k Jh Nxu yky Bsdsnkj }kjk bu Jfedksa dks ftudk Áfrfuf/kRo fledks dkexkj ifj"kn Hkjriqj }kjk fd;k x;k gS lsok ls i`Fkd djuk mfpr ,oa oS/k gS\ ;fn ugha rks mDr Jfedx.k fdl jkgr dks ÁkIr djus ds vf/kdkjh gS\**
5. The CIMMCO Kamgar Parishad, Bharatpur (hereinafter called as "the Union") submitted their statement of claim in the aforesaid reference and in the statement of claim, the Union made the present petitioner as Party No. 1 and the Contractor Chhagan Lal as Party No. 2.
6. The State Government amended the terms of reference by way of issuing a corrigendum dt. 14.4.1980 and the petitioner-CIMMCO Ltd. was added as party and reference was raised to the effect as whether CIMMCO Ltd. Being a principal employer was liable to take 35 workers of Contractor Chhagan Lal on work.
bl foHkkx }kjk tkjh lel[a;d vf/klwpuk fnukad 11-01-1979 esa fookn ds i{kksa esa ÁFke i{kdkj ^^O;oLFkkid fledks fyfeVsM Hkjriqj** dk uke vkSj tksM+k tkrk gS rFkk mDr vf/klwpuk esa gh fn;k x;k fookn dk in ds vfrfjDr fuEu fookn in vkSj tksM+k tkrk gSA
^^D;k O;oLFkkid] fledks fyfeVsM Hkjriqj eq[; fu;kstd gksus ds ukrs Bsdsnkj Jh Nxuyky ds mDr 35 Jfedks dk;Z ij ysus dks ck/; gS\**
7. The petitioner as well as the Contractor-Chhagan Lal submitted their reply to the statement of claim before the Labour Court. The Union filed affidavit of the employees. The petitioner also filed affidavit of three persons namely Shiv Singh, Ram Prasad & Ram Kishan.
8. The Union had filed an application dt. 13.10.1982 before the Labour Court making a request to summon the record from the employer-petitioner and specifically record relating to ESI deduction and relating to contract given to the Contractor were demanded. The petitioner filed reply to the said application and denied the requirement of summoning the record. The Labour Court by order dt. 09.12.1983 had rejected the application of the Union and further recorded a finding that ESI Card showing the deduction of ESI could be produced by the workman himself or could be summoned from the ESI office. It further recorded a finding that the workmen had not specified in clear terms as what kind of documents were required from the employer and as such finding the application to be baseless, the same came to be rejected.
9. The Union had again submitted an application dt. 21.4.1994 wherein they specifically asked for production of record in the nature of register maintained by the store Department for the year 1997-98, attendance r
