At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE SIDDHARTHA VARMA
For the Appellant: Pranjal Mehrotra, Komal Mehrotra, Advocates. For the Respondents: Anil Kumar, Ankush Tandon, Advocates.
1. Upon an industrial dispute being raised by the respondent no.3-Pramod Kumar Mishra, a Reference was made by the State Government to the respondent no-2 on 11.6.2007. The Reference reads as under :-
2. However, when the respondent no.2 i.e. the Industrial Tribunal (3), Uttar Pradesh, Sarvodaya Nagar, Kanpur answered the Reference in favour of the respondent no.3, the instant writ petition was filed.
3. The case of the respondent no.3 had been that he was posted as a Security Guard with the petitioner on 19.6.2003 through the respondent no.4-U.P. Poorva Sainik Kalyan Nigam Limited. However, when on 5.2.2007, the respondent no.3 was, without any reason, removed from service and that too orally without any notice etc. as was contemplated under section 6-N of the U.P. Industrial Disputes Act, 1947, the cause of action arose. The further case of the respondent no.3 was that upon his removal another Guard namely Baij Nath was engaged in his place. The case was contested by the petitioner and it had taken a stand that the respondent no.3 was in fact an employee of respondent no.4 and was only sent to the petitioner for performing certain functions; there was no relationship of employer and employee between the petitioner and respondent no.3 and in fact the respondent no.4 was the employer of the respondent no.3. In fact it was pleaded and argued by the petitioner before the Labour Court that the petitioner never made any payment to the respondent no.3. It was also stated before the Labour Court that the petitioner never terminated the services of respondent no.3.
4. The respondent no.4 had also contested the case before the Labour Court and had taken a stand that the respondent no.4 was not the employer and in fact it was the petitioner who was the employer of respondent no.3.
5. However, when the award was passed in favour of the respondent no.3 by the respondent no.2 by which the respondent no.3 was reinstated in service and was also granted back-wages from the date of termination, the present writ petition was filed.
6. The contention of learned counsel for the petitioner is that if the replication filed by the respondent no.3 to the Written Statement filed by the petitioner, before the Labour Court was perused then it could be seen that there was a clear admission of the respondent no.3 that he was sent for performing security guards duty in the petitioners establishment by the respondent no.4 i.e. the U.P. Poorva Sainik Kalyan Nigam Limited and that the respondent no.4 had replaced the respondent no.3 by sending in his place one Sri Baij Nath. Still further, learned counsel for the petitioner submitted that the workman i.e. the respondent no.3 in his replication to the Written Statement filed on 24.10.2007 had stated in paragraph 2 that the petitioners establishment used to make bulk payment to respondent no.4 who in its turn made payments to workmen. Since the learned counsel for the petitioner immensely relied upon paragraph 2 of the replication of the workman, the same is being reproduced here as under :-
7. Further learned counsel for the petitioner relied upon the cross-examination of the respondent no.3 and brought to the notice of the Court about the functions that the respondent no.4 was performing as an employer. Learned counsel for the petitioner relying upon the judgment of the Supreme Court reported in (2019) 13 SCC 82 : Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola & Ors. submitted that the Labour Court had to, while seeing as to whether there was an employer-employee relationship, give definite findings with regard to the following :-
'(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.'
8. Learned counsel appearing for respondent no.3, however, submitted that the award of the Industrial Tribunal required no interference as the Labour Court had definitely found that it was the petitioner who was the employer.
9. The respondent no.4 had also appeared and supported the stand taken by the respondent no.3.
10. I have carefully considered the submissions advanced by the learned counsel for the parties.
11. A perusal of the award shows that the oral statements of the workman-respondent no.3 have not been considered in their right perspective. The Labour Court was duty bound to have given a definite finding with regard to the fact as to who had appointed the respondent no.3; who was paying the salary; who had the authority to dismiss; who could take disciplinary action; whether there was continuity of service and also what exactly was the extent of control and supervision of the petitioner. A perusal of the award shows that the statements of the parties were not considered in their right perspective and the finding as was required to be arrive
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d at to come to a proper conclusion as to whether there was relationship of employer and employee was not arrived at correctly. 12. Under such circumstances, the writ petition is allowed. The award dated 28.8.2015 is set-aside. The matter shall now be re-considered and decided by the respondent no.2 within a period of two months from the date of presentation of a certified copy of this order, in the light of the law laid down in the judgment of the Supreme Court reported in (2019) 13 SCC 82 : Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola & Others.