JUDGEMENT
Augustine George Masih, J. -
(1.)IN the present writ petition, the petitioner -Management has challenged the order dated February 14,2008 (Annexure -P -5), vide which the reference has been answered in favour of the workman holding the workman entitled to reinstatement in service with full back wages.
(2.)COUNSEL for the petitioner -Management contends that there is no relationship of employer and employee between the workman and the Management as the workman was an employee of the contractor namely Sovereign Manpower Consultant who had been engaged \ by the petitioner to provide labour for loading and unloading of polymer papers produced by the petitioner -Management. The evidence which has been produced by the petitioner -Management clearly show that the workman was not engaged by the petitioner -Management and was employed by the contractor who was having full control and supervision over him. The attendance was being marked by the contractor and the pay was also given by the 2 contractor. She contends that the Personnel Officer of the petitioner - Management Shri Raj Kumar had appeared as M.W.1 before the Labour Court who had produced the attendance and wages registers from 1992 to 1999. As per the said records, Ram Sagar workman respondent was not on the rolls of the petitioner -Management.
For Sovereign Manpower Consultant, 3 Shri Tej Pal appeared as M.W.2 who was the brother of the owner and produced the records from March, 1998 to April, 1999, showing therein that the workman was working with them from March, 1998 to April, 1999. He further stated that the workman has worked for six days in the April 1999 with Sovereign Manpower Consultant and on completion of the contract with the petitioner -Management, the services of the workman was terminated. He further produced the Payment of Wages Register as Exhibit M.W.1/2 . On this basis, counsel for the petitioner contends that there was no relationship of employer and employee between the workman and the petitioner and the findings as recorded by the Labour Court are totally unsustainabl, and therefore , the award deserves to be set aside.
(3.)COUNSEL for the respondent on the other hand contends that the workman was appointed and he joined as Peon with the petitioner -Management on January 3, 1992. His services were terminated on April 7,1999 along with 80 other workers. He contends that the Management witness has admitted that the workman joined with the petitioner -management in the year 1992 and has thereafter taken a stand that he had resigned from the services of the petitioner -Management and joined the service as employee of the contractor. He contends that the workman has been able to prove that he was as a matter of fact employed with the petitioner -Management and continued with them as he has placed on record the stitching charges paid by the petitioner -Management in the name of the claimant. He states that the management witness further admitted that stitching charges are only given to the regular employees and the workers of the contractor are paid Rs. 200/ - only . He further contends that the passbook Exhibit M.W.5 dated August 23, 1994 shows that he was the worker of the petitioner -Management. E.S.I, card was placed on record as Exhibit M.W.6 which further goes to show that the workman was an employee of the petitioner -Management. He further contends that the civil suit, copy whereof has been placed on record as Exhibit M.W.7 shows that the petitioner -Management who has filed the civil suit contained names of all the workers of the contractor but the name of the workman was not mentioned there. He submits that his name was missing from the list of the contractor workers as he was in fact the worker of the management. He further contends that except for the year 1998 -1999, the records whereof has been: produced by Shri Tej Pal Management Witness 2 for the Contractor, does not indicate that earlier also he was the employee of the contractor. The assertion of the contractor that the earlier record has been burnt by the: workmen during the strike in the year, 1999, also does not hold the field as no complaint or F.I.R. was got registered by the contractor to justify that the record was indeed burnt. Nothing has been placed on record to prove that; the workman had resigned from the service of the petitioner -Management and joined the contractor. He states that it is an admitted position that the provisions of Section 25 -F of the Industrial Disputes Act have not been complied with while terminating the services of the workman. The termination of the workman from service is illegal and therefore, the award passed by the Labour Court is fully justified and does not call for any interference.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.