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Judgment
Heard learned counsel for the petitioner and learned Government Pleader for Labour.
The petitioner filed this petition to issue a writ of Certiorari calling for the records of I.D.No.32 of 2010, dated 03.12.2012 on the file of the 1st Respondent-Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad and to set aside the Award, passed on 03.12.2012 and published vide G.O.Rt.No.1402 dated 15.12.2012.
The case of the petitioner, in brief, is as follows:
a) The petitioner was recruited as a Waiter on 11.11.2003 and worked continuously till he took leave on 13.03.2009 to go to his home town. The petitioner hails from Udupi District in Karnataka and came to Hyderabad in search of a job. The petitioner was recruited as a worker in Aangan the non-vegetarian restaurant. When the petitioner was removed from service, his salary was Rs.4,500/-.
b) The 2nd respondent is a Hotel, located in a posh area of Begumpet, Secunderabad. It is a Bar-cum-restaurant.The petitioner was working continuously from the date of joining. At the time of joining, no appointment letter has been given to the petitioner and that no attendance register was also maintained by the 2nd respondent and that the wages were paid by voucher and not by wage slips. The only proof of employment allowed to the workers is an identity card.
c) Since, the petitioner hails from a far away place, he used to spend at least a couple of days in travelling from Hyderabad to Udupi. In March, 2009 when the petitioner received information that his close relative was suffering from severe illness, hence, the petitioner sought leave from 13.03.2009 to 25.03.2009. As the head of his department, The Restaurant Manager, delayed in sanctioning the leave, the petitioner took the permission of the Manager, HR and left. On 14.03.2009 the petitioner called the 2nd respondent establishment from his village to make sure that his absence would not be misunderstood. After going to the village, the petitioner’s relative died and the petitioner himself also fell sick and was forced to take treatment from a local doctor. As no one in his family could write English the petitioner informed his situation to the respondent establishment by telephone on 02.04.2009. The petitioner’s brother, who works at Taj Mahal Hotel, Hyderabad came to the respondent establishment on 03.04.2009 and informed to the Manager, HR about his inability to rejoin duty till he is well.
d) When the petitioner returned on 20.04.2009 after getting well, he was not taken into duty on the ground that the petitioner absented himself without reason or intimation. Having worked to the satisfaction of the respondent establishment for six years, the petitioner was entitled for consideration or at least an opportunity to explain the circumstances. But the petitioner has been denied an opportunity and the 2nd respondent terminated the petitioner unilaterally thereby not allowing the petitioner to rejoin duty.
e) The petitioner issued legal notice on 22.06.2009 that his removal was illegal and that if he was not taken back into service, he would move the Court. As the 2nd respondent did not take back the petitioner into service, he filed I.D.No.32 of 2010 and that the said I.D. was dismissed. Against the same, the present writ petition is filed.
f) The petitioner has been denied the opportunity of hearing and was terminated from service, therefore, the petitioner issued legal notice on 22.06.2009, even then the Respondent denied to take him into service such an oral termination is against law in violation of 25-F of I.D Act since the counsel who issued legal notice expired there is a delay in filing the petition.
The respondents filed counter denying the averments of the petition and contended as follows:
a) The petitioner was a contract worker appointed by M/s, Parthul Caterers and Placements, hence there is no employer and employee relationship between the petitioner and the Respondent. Claiming employment basing on the identity card and pay slips is nothing but to gain the undue benefits. The entire service of the petitioner is not satisfactory, the petitioner was arrogant with the customers and he is disobedient to his superiors and he was given several oral warnings and the said conduct was also informed to the contractor. Since the petitioner was not an employee of the Respondent the question of termination does not arise.
b) The petitioner was a contract worker under licenced contract employed in the year 2005 and worked up to 13.03.2009 and remained absent to duty from 14.03.2009 without any intimation either to the Respondent or to the contractor. In fact, the contactor provided Provident Fund benefit vide Account No. AP/HYI43197/68 to the petitioner from the year 2005 onwards.
c) The Identity was issued for the purpose of Easy identity to the Customers for his services. The petitioner fraudulently obtained pay slips for availing loan from financial institutions from the then Manager, Mr. Ramesh of the Respondent. After knowing the same the Respondent called for the explanation of Mr. Ramesh, who without giving explanation left the organization without intimation.
d) This petition is bad for non-joinder of necessary party i.e. the contractor.
PERUSED THE RECORD
The 1st respondent framed 4 points for consideration which are as follows :
Whether the petitioner is an employee under the Respondent and his services were illegally terminated.
Whether this petition is bad for non-joinder of necessary party.
Whether the petitioner is entitled for re-instatement with continuity of service, back wages and all other benefits as prayed for.
To what relief?
The findings of the 1st respondent after detailed discussion on each of the points framed are against the petitioner and in favour of the respondent.
The conclusion arrived by the 1st respondent on Point No.1 i.e., Whether the petitioner is an employee under the Respondent and his services were illegally terminated, is as follows:
“From the evidence of MWI supported by Exs.MI to M9 well establish that the petitioner was employed under M/s. Prathul Caterers and Placements w.e.f05/2005 for working in the Respondent Hotel, therefore it is false to state that the petitioner joined in the Respondent Hotel as a Waiter in the year 2003. Therefore the petitioner who is not an employee under the Respondent cannot maintain the present I.D. and is not entitled for reinstatement with full back wages, continuity of service and all attendant benefits. Accordingly this issue is settled against the petitioner and in favour of the Respondent.”
The conclusion arrived by the 1st respondent on Point No.2 i.e., Whether this petition is bad for non-joinder of necessary party, is as follows :
“The evidence of MW1 supported by Ex.M1 to M9 well established that the petitioner is a worker appointed by the M/s. Parthual Caterers and Placements in the month of May 2005, but not by the Respondent in the year 2003. Since the petitioner is a worker employed by M/s. Parthual Caterers and Placements the said Ms. Parthual Caterers and Placements is a proper and necessary party for adjudication of facts in issue. Therefore this petition is bad for non-joinder_of M/s. Parthual Caterers and Placements. Accordingly this issue is settled against the Petitioner and in favour of the Respondent.”
The conclusion arrived by the 1st respondent on point No.3 i.e., Whether the petitioner is entitled for re-instatement with continuity of service, back wages and all other benefits as prayed for, is as follows :
“Exs. W1 to W3 are not sufficient to establish the master and servant relationship between the petitioner and Respondent. Since there is no relationship of master and servant and the petitioner is not a worker engaged by the respondent the very I.D. itself is not maintainable when the petitioner is not a worker under the respondent the question of termination of the petitioner from service does not arise. As such when the petitioner is not a worker appointed by the respondent and there is no master and servant relationship the question of termination of petitioner does not arise. Consequently the re-instatement of the petitioner with full backwages does not arise.“
The conclusion arrived at by the 1st respondent on Point No.4 i.e., “to what relief” is as follows :
“In the facts and circumstances discussed above and findings on issues No.1 to 3, I find that the petitioner is a worker engaged by M/s. Prathut Caterers and Placements to work under the respondent. There is no master and servant relationship between the petitioner and the respondent. The respondent had no supervision and control over the petitioner. The petitioner was never terminated by the respondent. This petition is bad for non-joinder by necessary party. The petitioner is not entitled for reinstatement with full backwages”.
This Court taking into consideration the detailed discussions and the findings and conclusion arrived at by the 1st respondent on the four points framed by the 1st respondent in the present case for adjudication of the claim of the petitioner opines that there is no illegality in the Award passed by the 1st respondent in ID No.32 of 2010 dated 03.12.2012 and published on 15.12.2012 vide G.O.Rt.No.1402 and the I.D. itself is not maintainable since the petitioner is not an employee of the 2nd respondent and therefore the question of termination of the petitioner does not arise.
The Writ Petition is devoid of merits and is accordingly dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand dismissed.