The court affirmed the Labour Court's finding of direct employment despite contractual claims, modifying relief from reinstatement to compensation due to prolonged litigation.

ORDER :

The writ petition is filed challenging the Award of the Labour Court dated 17.12.2008 made in ID No.485 of 2002. By the said Award, the claim petition filed by the Workman under section 2-A (2) of the I.D.Act was allowed and the Workman was granted the reliefs of reinstatement with back wages and continuity of service and other monetary benefits besides cost of Rs.1000/-.

2. The case of the Workman is that he was employed in the Second respondent management, even though through the first respondent Contractor, on 28.06.2001. As a matter of fact, in August 2001, when he was working as the machine operator, he also suffered an injury in his right hand fore finger and the claim was also made with Employee State Insurance Corporation by mentioning him, as if, he is the employee of the second respondent management. While so, thereafter in the year 2002, with effect from 10.07.2002, suddenly, he was non employed and hence, he raised a dispute. Conciliation failed. Thereafter, the claim petition is filed.

3. The claim petition was resisted by the respondent contractor who filed a petition specifically admitting that the Workman is their Workman and not that of the second respondent management. It is also further stated that the contractor is willing to offer employment to the petitioner in some other company. The claim is also resisted by the second respondent management on the ground that the Workman was never employed by them and he is the employee of the contractor. When the contractor is willing to offer employment in some other company, the petitioner has not accepted the same.

4. On the strength of the said pleadings, when the Labour Court took up the matter for inquiry, the Workman examined himself as PW1 and Exs.P1 to P7 were Marked. On behalf of the Respondents, two witnesses, namely one N.Murali and R.Velappan were examined and Exs.R1 to R18 were marked.

5. The Labour Court considered the case of the parties and first considered Exs. R4, R5 and R6, with reference to the claim made for the injury with the Employee State Insurance Corporation and found that since in the relevant column, it was not even specifically mentioned that the second respondent is a principal employer, the petitioner should be deemed to be their employee. The Labour Court, thereafter, found that the licence for engaging the contractor was later in point of time that is only on 21.06.2002, whereas the engagement is in the year 2001. The Labour Court also found that the employer's code number in Ex.R4 seems to have been interpolated, therefore, for all the reasons disbelieved the case of the management and held that the petitioner is a direct employee under the second respondent management and ordered reinstatement with back wages and continuity of service and other monetary benefits. Aggrieved by the same, the management is before this Court.

6. Mr.K.Rangesh, learned counsel appearing on behalf of the Management would submit that firstly, in this case, it can be seen that except for the claim made in the ESI Corporation, every other document, which is on record, categorically shows that the Workman was employed only by the first respondent contractor. The order of appointment is given only by the Contractor. Even the resume submitted by the Workman clearly records and undertakes that he was the employee only on the contractor. A perusal of the muster roll, it is clear that the wages are paid only by the contractor. The employer has also produced the agreement between the contractor and the management for supply of labour. In view thereof, when the management has categorically and clearly proved that the petitioner was only the employee under the contractor, the relief, if any given, should be given only as against the first respondent and not against the second respondent that is the petitioner management. While the Employee State Insurance Corporation Form is duly produced, merely because the code number was overwritten, the Labour Court unnecessar