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Judgment
Heard counsel for the parties.
The present writ petition has been filed against the Award dated 08.06.2000 passed in Reference No. 97 of 1995 by C.G.I.T. No.1, Dhanbad whereby the reference has been answered in favour of the workmen directing the petitioner-management to regularize the concerned workmen from the date of reference i.e. 22.08.1995 as Category-I General Mazdoor but back wages has been denied.
From pleading and argument of the parties, it appears that the respondent-Union has claimed that the workmen were working with the petitioner-company for last 5 to 6 years. It has been asserted that the concerned workmen have been performing the job of Coal Breaking, Shale Picking, Line Cleaning, Wagon Levelling etc. continuously and hence put in more than 240 days attendance in each Calendar Year, as such they are entitled for regularization.
Petitioner-management has filed written statement refuting the claim of the workmen. A stand has been taken that there is no relationship of employer and employee rather the concerned workmen were working under M/s. Rawal Transcon (P) Ltd., who is a contractor firm and provides the contract jobs of transportation of coal from the colliery to the Railway siding on the basis of work orders issued to that firm.
Evidence has been led by the parties. Workmen has led two oral witnesses and management has led three witnesses. The workmen has produced three exhibits as W-1, W-2 & X. Exhibits are attendance sheets and payment register maintained by the contractor. Management has produced two documents Ext. M-1 & M-2. These exhibits are work order and bills raised by the contractor whereby the contractor has been assigned work of transportation of coal. The terms of reference of Reference No. 97 of 1995 is as follows:-
"Whether the demand of the Union for the regularisation of services of S/Shri Naresh Paswan and others (As per list enclosed) by the management of North Tisra Colliery of M/s. Bharat Coking Coal Limited is justified? If so, to what relief are the concerned workmen entitled?"
Considering the evidence and argument of the parties, three points have been formulated by the concerned Tribunal, which are as follows:-
"(i) Is the reference legally maintainable?
(ii) Is there relationship of employer and employee in between the management and the concerned persons, namely, Naresh Paswan and 74 others? If so, were they employed in a permanent and perennial nature of job?
(iii) Is the demand of the sponsoring union, Bihar Colliery Kamgar Union for regularization of Naresh Paswan and 74 others in the employment of the management of North Tisra colliery of M/s. B.C.C.Ltd. justified? If so, to what relief are the concerned workmen entitled?"
All the issues have been answered in favour of the workmen and resultantly Award dated 08.06.2000 has been pronounced in following terms:-
"They are treated to be regularized in services from the date of reference i.e. 22.08.1995 as Category-I General Mazdoors, but they will not be entitled to claim back wages. However, they shall be entitled to wages of Category-I General Mazdoors as per NCWA applicable at present from the date of publication of the award. The management must regularise them within 30 (thirty) days from the date of publication of the award and if they failed to regularise them within 30 days or even within six months from the date of publication of the award then the concerned persons shall be entitled to claim wages payable to General Mazdoor Category-I with 12.5% interest also."
The Award has been passed in favour of the workmen mainly on two grounds. Firstly, that the respondent-workmen has continued in the employment even after change of the contractor. Secondly, the payment was being ensured by the management and also the work supervision was with the management.
Assailing the above grounds of the impugned Award, counsel for the petitioner has argued that for establishing the employer and employee relationship, the parameters have been enunciated by the Apex Court in various judgments including (2019) 7 SCC 440 in the case of Director, Steel Authority of India Limited Vs. Ispat Khadan Janta Mazdoor Union.
Reference has also been made to the judgment in the case of Balwant Rai Saluja & Anr. Vs Air India Ltd. & Ors. reported in (2014) 9 SCC 407. Relevant paragraphs 61 to 65 are quoted hereinunder:
Further, the above case made reference to International Airport Authority of India case wherein the expression "control and supervision" in the context of contract labour was explained by this Court. The relevant part of International Airport Authority of India case, as quoted in Bengal Nagpur Cotton Mills case is as follows: (Bengal Nagpur Cotton Mills case, SCC pp. 638-39, para 12)
"12. '38. ... if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.' (International Airport Authority of India case, SCC p. 388, paras 38-39)"
A recent decision concerned with the employer-employee relationship was that of Nalco case. In this case, the appellant had established two schools for the benefit of the wards of its employees. The writ petitions were filed by the employees of each school for a declaration that they be treated as the employees of the appellant company on grounds of, inter alia, real control and supervision by the latter. This Court, while answering the issue canvassed was of the opinion that the proper approach would be to ascertain whether there was complete control and supervision by the appellant therein. In this regard, reference was made to Dharangadhra Chemical Works case wherein this Court had observed that: (Nalco case, SCC pp. 768-69, para 22)
"22. '14. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins& Griffith (Liverpool) Ltd., "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question".' (Dharangadhra Chemical Works case, AIR p. 268, para 14)"
(emphasis supplied)
The Nalco case further made reference to Workmen of Nilgiri Coop. Mktg. Society Ltd. v. State of T.N., wherein this Court had observed as follows: (Nalco case, SCC p. 771, para 27)
"27. '37. The control test and the organisation test, therefore, are not the only factors which can be said to be decisive. With a view to elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject.
With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests wherefor it may be necessary to examine as to whether the workman concerned was fully integrated into the employer's concern meaning thereby independent of the concern although attached therewith to some extent.' (Workmen of Nilgiri Coop. Mktg. Society case, SCC p. 529, paras 37-38)"
It was concluded by this Court in Nalco case that there may have been some element of control with Nalco because its officials were nominated to the Managing Committee of the said schools. However, it was observed that the abovesaid fact was only to ensure that the schools run smoothly and properly. In this regard, the Court observed as follows: (SCC p. 772, para 30)
"30. ... However, this kind of 'remote control' would not make Nalco the employer of these workers. This only shows that since Nalco is shouldering and meeting financial deficits, it wants to ensure that the money is spent for the rightful purposes."
Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists complete control and supervision.
As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case, International Airport Authority of India case and Nalco case.
From perusal of above judgment, it appears that Court has developed various test such as the control test, the organization test, the integration test and it can also be looked into from the angle that whether the concerned contract was contract of service or contract for service, or whether employer has set up the contractor as smoke screen with a view to avoid its statutory liability. Ultimately, it has to be determined with reference to the particular facts of the case.
The Apex Court has given one more parameter i.e. primary control and secondary control. Primary control is with the employer who gives the employment, controls the employment. Supervision and control of work lies with the secondary controller. Supervision of work is nothing but suggest existence of the secondary employer and employee relationship. The relief of regularization can be granted only against the primary controller and not against the secondary controller.
In the present case, it is admitted position of the parties that the concerned workmen were employed by the contractor and they were being paid salary by the contractor. Salary was being ensured by the management i.e. the statutory liability of the principal employer. Rules 72 and 73 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 are quoted hereinbelow:-
"Rule 72. The principal employer shall ensure the presence of his authorised representative at the place and time of disbursement of wages by the contractor to workmen and it shall be the duty of the contractor to ensure the disbursement of wages in the presence of such authorised representative.
Rule 73. The authorised representative of the principal employer shall record under his signature a certificate at the end of the entries in the Register of Wages or the [Register of Wages-cum-Muster Roll] as the case may be, in the following form:"
"Certified that the amount shown in column No.....has been paid to the workmen concerned in my presence on ......at......"
As per above rules/mandates, the principal employer is under obligation to ensure proper wages and payment to the concerned workmen. This cannot be a ground for inference of the relationship of employer and employee between the parties.
Counsel for the respondent-Union has referred certain documents brought on record by way of counter affidavit. Those documents are Form-B, I.D. Card, Wage Slips and Vocational Training Certificate. Relying upon those documents, argument has been advanced that these documents suggest that the petitioner-management was the primary employer.
This Court has been approached by the petitioner-management under Article 226 of the Constitution of India against the Award passed by the Tribunal. While scrutinizing the Award, this Court has limited jurisdiction to ascertain that there is no perversity in finding of fact meaning thereby that finding of fact is based on evidence, relevant evidence has been taken into consideration or non-admissible evidence has not been taken into consideration or there is some patent fundamental error of law. Accepting additional evidence while exercising jurisdiction under Article 226 vis-a-vis Award passed by the Tribunal has not been contemplated in law. Thus those documents cannot be looked into by this Court.
In view of above discussion and judicial pronouncement, this Court finds that the learned Tribunal has committed fundamental error by recording employer and employee relationship on the basis of logic/reason/inference which is not permissible. This inference is not based on evidence rather it is based upon the consideration that the workmen has been retained by successive contractor.
Further, performance of statutory duty by the principal employer has been taken into consideration as an evidence of employer and employee relationship.
Thus, the impugned Award dated 08.06.2000 passed in Reference No. 97 of 1995 by C.G.I.T. No.1, Dhanbad is not sustainable in law. Accordingly, the same is, hereby, set aside.
Resultantly, present writ petition stands allowed.
Pending I.A. stands disposed of.