Point of Law : If termination of a workman is in violation of provisions of of Act of 1947 and if there is no fault of the employee and matter is being dragged by employer for a considerable period then in such case, reinstatement should be a proper relief to employee and not lump-sum compensation.

JUDGMENT :

The instant writ petition has been filed by the petitioner-employer challenging the award dated 31st October, 2018, whereby the Industrial Tribunal has answered the reference made to it by the State Government with regard to termination of services of the respondent-employee.

2. Learned counsel for the petitioner – employer submitted that the Labour Court, while answering the reference, has come to the conclusion that the respondent-employee was employed as Driver from December, 1999 to 30th November, 2002 with the present petitioner and he was not an employee of the contractor, through whom, he was sent to the petitioner’s Department.

3. Learned counsel for the petitioner submitted that benefit of continuity has been granted to the respondent-employee and he has also been awarded 25% backwages from the date of termination of service, i.e., 01st December, 2002.

4. Learned counsel for the petitioner has made following submissions, while assailing the award passed by the Labour Court:

(4.1) The Labour Court did not afford adequate opportunity to the petitioner to file reply to the statement of claim and further, no opportunity was granted to lead evidence and as such, the ex-parte proceedings were drawn and the right to defend has been violated by the Labour Court.

(4.2) The service of the respondent-employee was not taken by the petitioner-employer directly and it was only on account of the request being made to supply extra manpower, the respondent-employee came to be referred by the contractor and as such, the respondent-employee was not an employee/workman of the petitioner’s organization.

(4.3) The respondent-workman did not lead any evidence showing himself to be an employee of the petitioner and no cogent evidence was produced either as an oral or documentary evidence showing relationship of the respondent-employee with the present petitioner.

(4.4) The claim of the respondent-employee to get the status of the petitioner being principal employer was not proved by any evidence and as such, in absence of relationship of employer and worker, the award could not have been passed in favour of an employee.

(4.5) Assuming though not admitting, the respondent-employee had worked from December, 1999 to 30th November, 2002, reinstatement ought not to have been awarded and the Labour Court could have moulded the relief by giving reasonable compensation to the respondent-employee.

(4.6) The continuity of service with 25% backwages is given to the respondent-employee as a final relief and the same is not as per the para-meters, laid down by the Apex Court from time to time, while considering the status and duration of the employment of an employee.

(4.7) The documents have been placed before this Court to show that request was made by the Secretary, Rajasthan Medicare Relief Society, Alwar to the contractor to supply one additional Driver on contract basis and further, the letter, received from the said contractor supplying manpower the respondent-employee, is also placed on record.

(4.8) The documents conclusively proved that employment of the respondent-employee was not as a regular employee of the Department but he was only sponsored through a contractor and as such, the evidence placed before this Court clearly establishes no relationship of the petitioner with the respondent-employee as an employer and workman.

5. PER CONTRA, learned counsel for the respondent-employee has made following submissions :

(5.1) A bare perusal of the award shows that several opportunities were given to the petitioner-employer to file reply to the statement of claim and in spite of such opportunities granted on various dates, when no reply was filed, the Labour Court has accordingly proceeded in the matter to decide claim of the respondent-employee.

(5.2) The right to lead evidence was also not availed by the petitioner-employer and as such, the additional documents, which have been placed along with this writ petition for consideration by this Court, may