1. The Petitioner has approached this Court for quashing/setting aside the Order, dated 11.7.2019 (Annexure-5) passed by the Deputy Chief Labour Commissioner (Central), Dhanbad (Respondent No.1), who is an Appellate Authority under the Payment of Gratuity Act, 1972, whereby and whereunder a direction was issued upon the Petitioner to pay the Gratuity to the Respondent No.3.2. The case of the Petitioner lies in a narrow compass. The Petitioner, M/s. Heavy Engineering Corporation Limited (hereinafter referred to as 'HEC') is a Company registered under Section 617 of the Indian Companies Act, 1956 and is a Government of India Undertaking. The Petitioner-HEC in order to get its work done, engages different Contractors through various Manpower Samities. One such Samiti is the present one operated by the Respondent No.4. The Contractors of the said Samiti keep on changing from time to time after holding internal elections, but the name and style of the Samiti remains the same. The Respondent No.3, (Pandu Topno) was a Workman of one of such Samities run by Respondent No.4. The Respondent No.3 joined the services as Fitter under Respondent No.4 and after attaining the age of 60 years, he superannuated on 31.3.2012. Thereafter, he approached the Petitioner as well as Respondent No.4 for payment of gratuity, but no heed was paid. Aggrieved by the same, he filed an application on 30.4.2013 before the Controlling Authority in Form-N under Rule 10(1) of the Payment of Gratuity Rules, 1972 for a direction upon the Petitioner-HEC and Respondent No.4 for determination of amount payable towards gratuity and making payment thereof to him and vide Order, dated 22.9.2017, the Controlling Authority rejected the claim of the Respondent No.3. Aggrieved by the same, he preferred an Appeal before the Deputy Chief Labour Commissioner (Central), Dhanbad, and vide Order, dated 11.7.2019, Appeal of the Respondent No.3 was allowed and a direction was issued upon the Petitioner-HEC to pay the Gratuity to the Respondent No.3 along with 10% Interest from 1.4.2012 till date of payment. Aggrieved by the impugned Appellate Order, the Petitioner-HEC has been constrained to knock the door of this Court, challenging the Appellate Order, dated 11.7.2019.3. Mr. Mukesh Kumar, learned Counsel for the Petitioner-HEC assailed the impugned Order on the ground that there is no Employer-Employee relationship between the Petitioner and Respondent No.3 as he was appointed/engaged by the Contractor i.e. Respondent No.4 for carrying out the work of Petitioner-HEC and as such, the Petitioner is not responsible for payment of gratuity. He further submitted that Appellate Authority also failed to consider the evidences produced by Respondent No.3 wherein, he had stated that he was appointed on 1.11.1983 in HMBP Unit under M/s. Ghasis Oraon, Contractor and also worked under different Contractors in the establishment of Petitioner-HEC, but he was not paid his Gratuity by his Employers i.e. Contractors and as such, Employer-Employee relationship between the Petitioner and Respondent No.3 does not exist. He further submitted that since the Respondent No.3 was appointed by the Contractor on contractual basis and there was no control and supervision of the Petitioner-HEC over the Respondent No.3-Workman, the Petitioner-HEC cannot be held liable to pay the gratuity amount to the Workman appointed by the Contractor/s. Learned Counsel further submitted that the Workman did not produce any chit of paper/document in support of his claim or even Appointment Letter issued by the Petitioner-HEC Management. Learned Counsel places a Circular issued by Addl. Central P.F. Commissioner-II (CAIU), wherein it is stipulated that a large number of Employees were being hired on Contract Basis by various Principal Employers including Government Departments, PSUs, etc. for their business activities. Those Contract Employees are not being provided Social Security benefits under the EPF which they are entitled too and a clear cut direction was given to all PSUs to ensure compliance thereof. As the Respondent No.4 has already been paid EPF contribution, which was being deducted by the HEC Trust and as such, payment of admissible Gratuity is the responsibility of the Contractor by whom the Respondent No.3 was engaged. To buttress his argument, learned Counsel for the Petitioner placed heavy reliance on the following Judgments of different Hon'ble High Courts as well as Hon'ble Apex Court:I. Cummins (I) Ltd. v. I.C. Services, 2017 (3) Mh.LJ 294;II. Cominco Binani Zinc, Ltd. v. Pappachan, 1989 (1) LLN 474 (Ker.): 1989 (1) KLT 6;III. Managing Director, Hassan Cooperative Milk Producer's Society Union Limited v. Assistant Regional Director, Employees' State Insurance Corporation, 2010 (11) SCC 537.4. Per contra Counter-Affidavits have been filed.5. Mr. Pradeep Kumar Prasad, learned Counsel for the Respondent No.3 vehemently opposed the contention of the learned Counsel for the Petitioner and submitted that there is no illegality or infirmity in the impugned Appellate Order. He further submitted that the payment of Gratuity Act says that 'Employee means any person save and except apprentice'. The Respondent No.3 worked under the supervision and control of the Principal Employer i.e. Petitioner-HEC as the registers and records were being maintained by the HEC Ltd. and also the amount of Provident Fund was being deposited in Provident Fund Account of HEC Ltd. He further submitted that the Respondent No.3 retired from services after attaining the age of superannuation as per Rule of HEC Ltd.-Petitioner. He further submitted that the certificate issued by the Samiti proves that the Respondent No.3 had worked from 1.11.1983 to 31.3.2013.6. Mr. Arvind Kumar Singh, learned Counsel appeared on behalf of the Respondent No.4 and submitted that Respondent No.4 is only an instrumentality of the Writ Petitioner and all the liability to pay the Wages, P.F., Gratuity etc. are with the Writ Petitioner. He further submitted that Respondent No.3 was not the Workman of the answering Respondent rather he was a person, deployed by the Samiti to work under the Writ Petitioner-HEC Ltd. The Writ Petitioner-HEC Ltd. by treating these Workmen as its Employee extends them a number of benefits such as allotment of quarter etc. He further submitted that the bills of Wages are prepared by the Writ Petitioner-HEC Management and after deducting the amounts against PF, ESI and HRA, the same is transferred into the account of Samiti/Contractor. The Samiti/Contractor in its turn pays the entire salary/Wages to the concerned Workman as per the bills prepared by the Writ Petitioner-Management. He lastly submitted that all the liability against PF, Gratuity etc., lies with the Writ Petitioner-HEC, the Respondent No.4 only gets 2.75 to 3.75 percent of the wages paid to the labour/Workmen from the Petitioner and this payment are used by the Samiti for its proper functioning and as such, there is no illegality or infirmity in the impugned Order.7. Mrs. Nitu Sinha, learned Counsel appearing on behalf of the Union of India supported the Order passed by the Appellate Authority.8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the Respondent No.3 namely, Pandu Topno admittedly retired on attaining the age of superannuation from the services of Petitioner-Management. The questions involved in this Writ application is whether the Respondent No.3 is Employee of the Petitioner-Management or the man of the Contractor and whether the Respondent No.3 is entitled for payment of Gratuity by the Petitioner-Management or by the Contractor/Samiti. Before assigning cogent reasons for payment of gratuity, it would be proper to look into the relevant provisions of Gratuity Act, which reads as follows:Section 1(3) of the Payment of Gratuity Act, 1972: it shall apply to(a) every factory, mine, oilfield, plantation, port and Railway Company.(b) Every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any of the preceding twelve months;(c) Such other establishments or class of establishments, in which ten or more Employees are employed or were employed, on any day of the preceding twelve months, as the Central Government may, by Notification, specify in this behalf.The above definition of establishment, does not, certainly excludes the Contractor's establishment from the purview of payment of Gratuity Act, 1972. So the Contract Labourers are also covered under the Act.9. So far as the contention the learned Counsel for the petitioner-HEC that there was no direct relationship of Employer and Employee between the contract worker and the principal Employer is concerned, the Section 2(e) of Payment of Gratuity Act, 1972 clarify the issue, which reads as under:'Employee' means any person (other than apprentice) employed on wages in any establishment, factory, Mine, Oilfield, Plantation, Port, Railway Company or shop to do any skilled, semi skilled or unskilled, manual supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person, who holds a post under the Central Government or a State Government and is governed by any act or by any rules providing for payment of gratuity.10. Further, the definition of 'Worker' as defined under Section 2(1) of Factories Act, 1948 reads as follows:'Worker' means a person employed, directly or by or through any agency (including a Contractor) [emphasis supplied by me] with or without the knowledge of the principal Employer, whether for remuneration or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the Union.The above definition of 'Worker' even includes a Contract Worker, who is a Worker for the purpose and also under Factories Act, 1948.11. The Hon'ble Apex Court in case of Indian Petrochemical Corporation Ltd. v. Shramik Sena, 2001 (1) LLN 924 (SC): 1999 (83) FLR 74, has held that 'the Contract Workers working in the canteen of the factory would be the Employees/Workers of the Principal Employer for the purpose of Factories Act, 1948'.12. Further, the Hon'ble Apex Court in case of Mangalore Ganesh Beedi Workers & ors. v. Union of India, AIR 1974 SC 1832, has held thus:"In cases where the manufacturer or Trade Mark holder himself employs labour there is direct relationship of master and servant and, therefore, liability is attracted by reason of that relationship. There cannot be any question of unreasonableness. In the second category, the manufacturer or trademark holder engaged Contract Labour through a Contractor and he becomes the Principal Employer. Though such labour may be engaged by Contractor with or without the knowledge of the manufacturer or Trademark holder, this Contract Labour is engaged for the principal Employer, who happens to be the Trade Mark holder or the manufacturer. The liability arises by reason of Contract Labour engaged by or on behalf of the principal Employer...."13. The Hon'ble Apex Court in case of Pepsico India Holding (P) Ltd. v. Grocery Market & Shops Board, 2016 (2) LLN 304 (SC): 2016 (4) SCC 493, on the point of contractual labourers, who were employed through Contractors, are entitled for terminal benefits as such as provident fund and gratuity has observed that:"19. Taking a cue from the Objects and Reasons for this piece of social legislation and from the well-known doctrine of construing such legislation in an expansive manner to further the object of welfare legislation of the kind mentioned hereinabove, and not to stultify such object, we hold that the Bombay High Court cannot be faulted in its reasoning. It must also not be forgotten that the object of the 1970 Scheme is not only to provide work to both Employer and Employee but also to provide amenities and benefits to registered Workers. These amenities and benefits are to be provided by the Board to Employees by charging the Employer with a levy which cannot exceed 50% of the total wage bill of the Employer without the prior approval of the State Government. We are told that in the present case the levy amount is 41%, which is utilised not only to look after the health of the Workers, but also to give them terminal benefits such as provident fund and gratuity provided for by Clause 43 of the 1970 Scheme.20. It was further submitted by Shri Cama that on a conjoint reading of the definitions of "Employer", "principal Employer" and "Worker" contained in Sections 2(3), (7), (12), as the two societies are Contractors employing Contract Labour for and on behalf of the Appellant Company's purchasers, the Appellant Company cannot be said to be the "principal Employer" who is liable to be registered under the 1969 Act. We are afraid that this contention does not lie in the mouth of the Appellant Company. By an application made for registration under the 1969 Act, dated 11.10.1996, in Column 7, which reads as follows:"7. Are you employing workers through Contractors? If so, state the name of the Contractors."the Company has specifically mentioned two cooperative societies and one other Contractor thereby admitting that it actually employed about 30 Workers itself through Contractors.22. Similarly, in the Writ Petition filed before the High Court, the Appellant Company's own pleading in Para 8 is that the Appellant registered itself with Respondent 2 Board under pressure of the Board believing that the Act and the Scheme were applicable. It was granted Registration No.4516. Further, in proceedings under the Act against the Company it admitted that it pleaded guilty for not having registered itself. This being the state of facts before us, we cannot characterise the State Government's finding in its Order, dated 24.6.2008 as even incorrect, let alone perverse. As pointed out above, in Para 6 of its Order, the State Government specifically arrived at a finding that mathadi work was carried out in the Company by two cooperative societies who had the work done by employing Workers and got compensated by the Appellant Company. This being the case, there is no factual foundation for Shri Cama's argument that it is the Appellant's purchasers and not the Appellant-Company itself that is the principal Employer under the Act.23. One other contention of Shri Cama needs to be noticed. Shri Cama argued before us that the 1969 Act being inconsistent with the Contract Labour (Regulation and Abolition) Act, 1970 would be repugnant to the said Act and therefore invalid under Article 254 of the Constitution. He candidly admitted that no such ground had been raised or argued before the High Court, but asked that the Supreme Court allow him to raise this plea as it is a pure question of law. We are afraid that this is not possible for the reason that even if Shri Cama were to be correct in his submission that the Central Parliamentary Act of 1970 would impliedly repeal the 1969 State Act, yet Section 30(1) of the said Act provides that despite the provisions of the 1970 Act being allegedly inconsistent with the 1969 State Act, yet if Contract Labour employed in an establishment are entitled to benefits which are more favourable to them than those to which they would be entitled under the 1970 Act, the Contract Labour shall continue to be entitled to more favourable benefits, notwithstanding that they also receive benefits in respect of other matters under the Central Parliamentary Act. This being the case, it was incumbent upon the Writ Petitioner not only to take up the plea of repugnancy and implied repeal but also to state as a fact that what the Workmen would be entitled to under the 1969 State Act would not be as beneficial as what they would be entitled to under the 1970 Central enactment. This would then give the Respondent Board, in turn, an opportunity of either admitting or denying this factual averment. There being no pleading to this effect in the Writ Petition before the High Court, it is clear that it is not possible for us to accede to Shri Cama's request to go into the argument on repugnancy and implied repeal."14. In view of the aforesaid discussion, the argument advanced by the learned Counsel for the Petitioner-Management that th
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e Respondent No.3 was not a direct Employee of the Company and as such, they are not liable to pay the gratuity amount as there was no relationship of Employee and Employer, is not accepted to this Court as there is certainly indirect relationship of Employer and Employee between the Principal Employer and the Contract Workers.15. Further, the provident fund contributions of the Workmen were being deposited in the PF Account of HEC Ltd. as also registers and records were maintained by Petitioner-HEC Ltd. and Respondent No.3 has been superannuated on attaining the age of 60 years though a Contract Labourer has no retirement age according to the Contract Labour (R & A) Act, 1970, these are the sufficient grounds for holding that the principal Employer of the Respondent No.3 is Petitioner-HEC Ltd. and as such, the Contract between the society and the principal Employer is just a paper arrangement.16. As a cumulative effect of the aforesaid rules, Guidelines and judicial pronouncement, this Court is in full agreement with impugned Appellate Order, dated 11.7.2019. There is no illegality or infirmity in the impugned Appellate Order. The contention of the learned Counsel for the Petitioner-Management is not at all accepted to this Court and Judgment relied upon by him does not come to his rescue as the same are based on different facts. There is no merit in the instant case. Accordingly, the instant Writ Petition stands dismissed.17. As a result thereof, the Petitioner-Management is directed to pay the gratuity amount and interest as determined by the Appellate Authority vide its Order, dated 11.7.2019 to the Respondent No.3-Workman, within a period of eight weeks' from the date of receipt of a copy of this order.18. In view of the disposal of the Writ Petition, pending I.A., if any, also stands disposed of.19. No order as to Costs.