The workers failed to prove direct employment by OCFL and that M/s. Balaji Traders was not a sham entity. IFFCO was not liable for the workers' absorption.

JUDGMENT :

The reference

1. The Oswal Sarakarakhana Shramika Sangha Trade Union (hereafter ‘Union’) has filed this petition challenging an Award dated 4th May, 2011 passed by the Industrial Tribunal, Bhubaneswar (Tribunal) in Industrial Dispute (ID) Case No.15 of 2002, answering the reference made to it of the following dispute in favour of the First Party-Management and against the Second Party-Union:

“Whether the workmen engaged in M/s. OSWAL Chemicals and Fertilisers Ltd., Musadia, Paradeep through M/s.Balaji Traders (list furnished by the L&E Deptt. vide Letter No.9854 dtd. 17.8.2002) are entitled to absorption in M/s. OSWAL Chemicals and Fertilisers Ltd., Musadia, Paradeep on expiry of contract on dt. 31.8.2001 or entitled to absorption/engagement under new contractors establishments entrusted with the execution of the said work?”

2. The Union is stated to be espousing the cause of 1139 Workmen, who were engaged to work in the fertilizer plant of OSWAL Chemical and Fertilizers Limited (OCFL) (Opposite Party No.2 herein) at Paradeep from 1997 onwards. The case of the Union was that the aforementioned 1139 workers were directly engaged by OCFL during the years 1997 to 2000 in a permanent and perennial nature of work. However, according to the Union, OCFL placed their services under a fictitious contractor-M/s. Balaji Traders (Opposite Party No.4 herein) in the month of September/October, 2000. The case of the Union was that there is no such Firm by the name of M/s. Balaji Traders in existence and such a fictitious entity was introduced only to deprive the Workmen of their status as regular workers of OCFL. The Union contended that the work of the 1139 Workmen was being controlled by officers of OCFL and, therefore, they should be treated as employees of OCFL.

3. The Union contended that with a view to suppressing the Union's activities, OCFL in January, 2001 refused employment to 18 members of the Union. This resulted in the Union calling for a strike with effect from 14th February, 2001. Despite intervention of the authorities, the dispute could not be resolved. Another strike took place on 21st June, 2001. The contract between OCFL and M/s. Balaji Traders expired on 31st August, 2001 and the services of the Workmen were terminated with effect from 1st September, 2001. The conciliation efforts on the Union's demand for absorption of the Workmen in the OCFL failed. A failure report was submitted on 15th July, 2002 by the Conciliation Officer-cum-Deputy Labour Commissioner, Cuttack.

4. Thereafter on 23rd July 2002, the Labour and Employment Department of the Government of Orissa (Opposite Party No.1) referred the aforementioned dispute for adjudication to the Tribunal. It may be noted here that according to the Union, it wrote a letter on 15th August, 2002 to Opposite Party No.1 whereby it sought amendment of the order of reference as under:

“Whether the 1139 workers who were directly working under the 1st Party Management are entitled to get the status of regular workers under the 1st Party management of M/s. O.C.F.L. and if not to what relief they are entitled to as workers under said M/s. Balaji Traders.”

5. The above amendment sought to alter the basic premise of a tripartite contract labour arrangement involving OCFL, the workman and M/s. Balaji Traders to a premise that “the 1139 workers who were directly working under the 1st Party Management” i.e. OCFL. The alternate plea was about their entitlement if they were to be considered workers of M/s. Balaji Traders. However, as acknowledged by the Union itself, the amendment to the terms of reference as requested for was not carried out. The Union does not appear to have pursued the matter of the amendment further. Thus, the reference continued to be premised on the engagement of the workers “through” M/s. Balaji Traders and not directly with OCFL.

Union’s statement of claim

6. The Union filed its statement of claim in the Tribunal on 28th January, 2004. Inter alia, the contention