TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 2049
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....9 SLP(C) Nos. 35278-35279 of 2014, CIVIL APPEAL NOS. 1909-1910 OF 2019 SLP(C) Nos. 36487-36488 of 2014, CIVIL APPEAL NOS. 1803-1804 OF 2019 SLP(C) Nos. 33796-33797 of 2014, CIVIL APPEAL NOS. 1805-1806 OF 2019 SLP(C) Nos. 33773-33774 of 2014, CIVIL APPEAL NOS. 1807-1808 OF 2019 SLP(C) Nos. 33775-33776 of 2014, CIVIL APPEAL NOS. 1809-1810 OF 2019 SLP(C) Nos. 33781-33782 of 2014, CIVIL APPEAL NOS. 1907-1908 OF 2019 SLP(C) Nos. 36662-36663 of 2014, CIVIL APPEAL NOS. 1869-1870 OF 2019 SLP(C) Nos. 35296-35297 of 2014, CIVIL APPEAL NOS. 1871-1872 OF 2019 SLP(C) Nos. 35298-35299 of 2014, CIVIL APPEAL NOS. 1873-1874 OF 2019 SLP(C) Nos. 35280-35281 of 2014, CIVIL APPEAL NOS. 1905-1906 OF 2019 SLP(C) Nos. 36490-36491 of 2014, CIVIL APPEAL NOS. 1877-1878 OF 2019 SLP(C) Nos. 35309-35310 of 2014, CIVIL APPEAL NOS. 1817-1818 OF 2019 SLP(C) Nos. 33783-33784 of 2014, CIVIL APPEAL NOS. 1819-1820 OF 2019 SLP(C) Nos. 33755-33756 of 2014, CIVIL APPEAL NOS. 1903-1904 OF 2019 SLP(C) Nos. 36670-36671 of 2014, CIVIL APPEAL NOS. 1821-1822 OF 2019 SLP(C) Nos. 33794-33795 of 2014, CIVIL APPEAL NOS. 1879-1880 OF 2019 SLP(C) Nos. 35292-35293 of 2014, CIVIL APPEAL NOS. 1891-1892 OF 2019 SLP(C) Nos. 36495-36496 o....
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....ain, AOR, Ms. Madhu Talwar, Adv., Mr. Rahul Verma, Adv., Mrs. D. Bharathi Reddy, AOR, Ms. Rachna Gandhi, Adv. JUDGMENT R. F. NARIMAN, J. The present appeals arise out of a judgment dated 24.04.2014 and a review dismissal from the aforesaid judgment dated 11.09.2014, by which the High Court of Uttarakhand has dismissed a writ petition against a Labour Court's Award. The brief facts necessary to decide these appeals are as follows: By Reference Order dated 09.11.2004 under Section 4(k) of the Uttar Pradesh Industrial Disputes Act, 1947, the following dispute was referred to the Labour Court: "Whether termination of services of workman Shri Mahendra Prasad Jakhmola, s/o Late Shri Vachaspati Jakhmola, Helper by the employer, w.e.f. 13.11.2001, is justified and/or as per law? If not, what benefit/relief the concerned workman is entitled for and with what other details?" Similar Reference Orders were made in 63 other cases. Pleadings were filed before the Labour Court at Haridwar and evidence was led on behalf of the appellant as well as by the workmen. By an Award dated 01.11.2009, the Labour Court held, referring to a notification, which is, notification dated 24.04.1990 unde....
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....perusal of all the documents and legal preposition of law laid down by Apex Court in Uttar Pradesh State Roadway Transport Corporation versus Imtiaz Hussain (supra). I am in agreement with the Opposite Party-2 that except arithmetical or clerical errors, the order which was passed by the court on merit, cannot be changed, amended or altered. As far as case in hand is concerned no clerical or arithmetical mistake is involved. As such, application A-2 is liable to be rejected." A writ petition was filed, being W.P. No. 1021/2011, against the aforesaid orders. This writ petition was dismissed by the first impugned order dated 24.04.2014 in which the High Court recorded that "undisputedly" all petitioners, i.e., workmen, were performing the duties which were identical with those of regular employees. Therefore, it can be said that they were under the command, control, management of the BHEL and, concomitantly, the contractor has absolutely no control over the workmen in performing such duties. It was, therefore, held that the alleged contract with the contractor was "sham" and, consequently, the Labour Court Award was correct in law and was upheld. Against this order, a special leave ....
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....uestion; no material is available on the record to say what was the period of supplying the labourers under the contract. In view of the above discussion, I do not find any good or valid reason to review the judgment under review. Consequently, all the review applications fail and are hereby dismissed." Shri Sudhir Chandra, learned senior counsel appearing on behalf of the appellant, has argued before us that the Labour Court Award was perverse. Accordingly to him, it could not have applied the notification dated 24.04.1990 as his client was excluded from such notification, and being excluded from such notification, there was, consequently, no prohibition on employment of contract labour. Further, if the evidence is to be read as a whole, it is clear that the representative of BHEL made it clear that, in point of fact, there were agreements with contractors and that it is workers of such contractors, who were paid by them, that are involved in the present dispute. He also added that no concession was made before the Labour Court, as was pointed out in the review petition, but, unfortunately, this plea was also turned down by the Labour Court, dismissing the review petition....
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....e also strongly relied upon the judgment in 'Basti Sugar Mills Ltd. v. Ram Ujagar and Ors.' [(1964) (2) SCR 838) to state that, in any event, even if these employees were employees of the contractor, yet by the extended definition of 'employer' in the Uttar Pradesh Industrial Disputes Act, a relationship of employer and workmen would exist under the said Act. She went on to cite certain passages in the 'Steel Authority of India Ltd. And Ors. v. National Union Waterfront Workers and Ors.' [(2001) 7 SCC 1] to buttress her contention that even if there were agreements with the contractor, they were only 'sham' or nominal on the facts of this case. Having heard learned counsel for both the sides, it is important, first, to advert to the Award of the Labour Court. The said Award sets down the notification dated 24.04.1990 that was issued under the 1970 Act. A reading of the aforesaid notification makes it clear that the appellant, insofar as their UP operations are concerned, in Haridwar, in particular, are exempted from the aforesaid notification. Despite this, however, the Labour Court went on to apply the said notification, which would clearly be perverse. In addition, though ....
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.... satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel for the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement from consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause (d) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction." Equally, where a question is a mixed question of fact and law, a concession made by a lawyer or his authorised representative at the stage of arguments cannot preclude the party for whom such person appears from re-agitating the point in appeal. In 'C.M. Arumugam v. S. Rajgopal' [(1976) 1 SCC 863], this Court held: "8. ....
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.... Court dismissing a review from its own order, we find that the High Court, in the first impugned judgment dated 24.04.2014, has also arrived at findings which are contrary to the evidence taken on record. First and foremost, it could not have said that "undisputedly", the labour that was employed through contractors were performing identical duties as regular employees and that, therefore, without any evidence, it can be said that they were under the control, management and guidance of BHEL. Secondly, when it said that alleged contracts that were awarded in favour of contractors and how many labourers, in what type of work etc. were asked for, were not furnished, is also directly contrary to the evidence led on behalf of the BHEL, in which such documents were specifically provided. Thus, Shri Naveen Luniyal, in his evidence-in-chief, had pointed out: "................................................................................................................................... Thus, we entered into contract of workers with the contractors which are document No. 8 and 9 of the above list and the same are marked Exhibit E-6 and E-7 respectively. The period of contract used t....
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....sel appearing on behalf of BHEL that in the very first sentence of the cross examination of the workmen, before the labour court, the workmen admitted that payments of their wages were made by four contractors including Shri Madan Lal. Also, the fact that Madan Lal was paid under the agreement with BHEL was never disputed. Indeed, Ms. Jain's argument that Madan Lal only derived a 10 per cent profit from the agreement with him presupposes payment to Madan Lal by BHEL under the agreement with him. This finding again is wholly incorrect. We, now come to some of the judgments cited by Shri Sudhir Chandra and Ms. Asha Jain. In 'General Manager, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lala and Another' [2011 (1) SCC 635], it was held that the well recognised tests to find out whether contract labourers are direct employees are as follows: "10. It is now well settled that if the industrial adjudicator finds that the contract between the principal employer and the contractor to be a sham, nominal or merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the....
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.... allots the employee to the principal employer. This is precisely what paragraph 12 explains as being supervision and control of the principal employer that is secondary in nature, as such control is exercised only after such workman has been assigned to the principal employer to do a particular work. We may hasten to add that this view of the law has been reiterated in 'Balwant Rai Saluja and Another v. Air India Limited and Others' [2014(9) SCC 407], as follows: "65. 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 [(2011) 1 SCC 635], International Airport Authority of India case [2009 13 SCC 374] and Nalco case [(2014) 6 SCC 756]." However, ....