ORDER : The petitioner, claiming to be an employee of the respondent-Company, has filed the above writ petition seeking to quash the impugned award dated 15.09.2008 passed by the III Additional Labour Court, Bengaluru in I.D No.71/2000 vide Annexure-A to the writ petition and direct the respondent to reinstate the petitioner with all consequential benefits, full back wages with interest and etc. 2. It is case of the petitioner that he was appointed in the year 1981 as an operator in the Hardening department of respondent-Company and he served as such till the date of termination i.e., 13.11.1999. He has filed a petition under Section 10(4-A) of the Industrial Disputes Act to set aside the order of termination and to direct the respondent to reinstate him with all consequential benefits like full back wages with interest. The same came to be rejected on 15.11.2008. 3. During pendency of the petition, petitioner retired from service. Hence he seeks only monetary benefits by nominal reinstating him into the service. The grounds urged by the petitioner is that he has served for more than 19 years, he has produced the attendance register and salary slip. The respondent has not complied any of the provisions of the I.D Act, while terminating his services. To satisfy the fact that he was working for more than 19 years in the respondent-Company, he had examined himself as WW1 and other two witnesses as WW2 and WW3 and marked documents as per Ex.W1 to W15, namely PF annual statement, ESI card, copies of attendance registers, salary slips, PF statement, copies of non remarriage certificate, order of appointment and copy of PF statement. The petitioner in the written statement has stated that he was appointed by the respondent and not by the contractor. 4. The respondent to prove its case has examined 3 witnesses MW1 to MW3, MW1 and MW3 are main witnesses and MW2 is the contractor and has marked 17 documents namely two bills, copy of the license, copy of attendance register, copy of payment register, bills, attendance registers and wage registers. 5. Initially the petitioner was appointed by the contractor Vijaya Engineering and the salary was paid by that contractor. Subsequently the contractors were changed to Hemadri and Shiva Shakthi Enterprises. These contractors were relatives of the Directors of the respondent Company. They were only name lending contractors. 5. Initially the petitioner was appointed by the contractor Vijaya Engineering and the salary was paid by that contractor. Subsequently the contractors were changed to Hemadri and Shiva Shakthi Enterprises. These contractors were relatives of the Directors of the respondent Company. They were only name lending contractors. Hence they have been paid salary and PF, only by the respondent and they were under direct supervision of the respondent and their services were perennial in nature. Under these circumstances the counsel submits that the rejection of petition by the Labour Court on 15.11.2008 is contrary and finding that there is no employer and employee relationship is erroneous. 6. Petitioner has been examined as WW1 and he filed an evidence by way of affidavit and reiterated the pleading in his deposition and deposed that initially he was appointed as operator by Vijaya Engineering and thereafter he continued his work in respondent department and paid salary etc., He has also examined another witness WW2 by name N. Shankaraiah. In his affidavit witness WW2 has deposed that the petitioner was working from 1981 as operator in 714 C in Hardening department. “The Hardening department is our neighbour department. The nature of work, he was doing were perennial one. Without Hardening department, the manufacturing process cannot be completed. He had never worked in the Garvebhavipalya Branch”. Similarly the evidence of WW3 also supported the case of the petitioner and it is further submitted that there are about three contractors working for the 2nd party-respondent. Initially through Vijaya Engineering contractor he got appointed but thereafter the services were continued and as per evidence of WW2 and WW3, the services were perennial in nature and also he relies on the evidence of MW2. In his cross examination he has stated that petitioner was appointed by the Vijaya Engineering in the year 1981 and he continued to work under that contractor and he was appointed for the purpose of production. Hence it is submitted to set aside the order of Labour Court. 7. In his cross examination he has stated that petitioner was appointed by the Vijaya Engineering in the year 1981 and he continued to work under that contractor and he was appointed for the purpose of production. Hence it is submitted to set aside the order of Labour Court. 7. In support of this, petitioner counsel has relied upon the Judgment of Hon’ble Supreme Court reported in Secretary, Haryana State Electricity Board vs. Suresh and Ors., 1999 (2) SLR which reads as under,- “The contract labour is employed in an establishment for seasonal workings, question of abolition would not arise but in the event of the same being of perennial in nature, that is to say, in the event of the engagement of labour force through intermediary which is otherwise in the ordinary course of events and involves continuity in the work, the legislature is candid enough to record its abolition since, involvement of contractor may have its social evil of labour exploitation and thus the contractor ought to go out of scene bringing together the principal employer and the contract labourers rendering the employment as direct, and resultantly a direct employee”. 8. The learned senior counsel for the respondent submits to dismiss this petition. His submission is as per the admission in the chief examination by the petitioner that the petitioner was appointed by the Vijaya Engineering and specifically their contract have changed code, but he continued, being an employee of the respondent, the PF has been paid for the same. The learned senior counsel refers to Sec.2(9) of ESI Act, ‘Employee means any person employed for wages in or in connection with the work of establishment – who is directly employed by the principal employer, or any work of, or incidental or preliminary to or connected with the work of the establishment whether such work is done by the employee in the establishment’. In section 40(1) of the ESI Act 1948, ‘The principal employer shall pay in respect of every employee whether directly employed by him or by or through an immediate employer both the employers contribution and the employee’s contribution’. As per the compliance of section 40, the respondent has contributed the ESI amount of the petitioner through his code. In section 40(1) of the ESI Act 1948, ‘The principal employer shall pay in respect of every employee whether directly employed by him or by or through an immediate employer both the employers contribution and the employee’s contribution’. As per the compliance of section 40, the respondent has contributed the ESI amount of the petitioner through his code. The learned senior counsel refers to Section 2 of PF Act and submits that employee who works for the respondent directly or indirectly from the contractor is called an employee. Under these circumstances since petitioner worked for the respondent through a change code only to that extent he is entitled. The learned counsel submitted that PF has to be directly entitled by the employee in the first instance inspite of employees either employed by or through contractor. 9. Further, learned senior counsel submits in compliance of provisions that contract of the petitioner has been made through the code which was allotted to the respondent and since his duty is to have the same and there after he has initiated action to recover it from the employer. Under these circumstances learned senior counsel submitted to reject this petition. The learned senior counsel refers the evidence of MW1 who is the petitioner. This petitioner has deposed that he was appointed by the contractor and his services were continued after the completion of contractor period. This shows that petitioner was not appointed by the respondent and his submission that the petitioner had no contractor, the contractor of the respondent is not correct, since he was not an employee of the respondent. 10. MW2 in his evidence affidavit deposed that, he made an allegation of refusal of work from 13.11.1999. It was denied as false as per the attendance register as he has worked upto 19.11.1999 and from 20.11.1999 he stopped attending work for the reasons best known to him. Further in the cross examination he deposed that he was not working at GVP plant. Before coming to the contractor, he was working with Vijaya Engineering and Hemadri contractors. PF and ESI amount was deducted in the salary itself and there was no relationship between them. It is proved that he was working at principal plant for Vijaya Engineering and Hemadri contractors. 11. Before coming to the contractor, he was working with Vijaya Engineering and Hemadri contractors. PF and ESI amount was deducted in the salary itself and there was no relationship between them. It is proved that he was working at principal plant for Vijaya Engineering and Hemadri contractors. 11. He also relied upon the Judgment of Hon’ble Supreme Court reported in General Manager, (OSD), Bengal Nagpur Cotton Mills vs. Bharat Lal and Another (2011) 1 SCC 635 which reads as under, (reference para 11, 12 and 13). “The Industrial Court misconstrued the meaning of the terms ‘control and supervision’ and held that as the officers of the appellant were giving some instructions to the first respondent working as a guard, he was deemed to be working under the control and supervision of the appellant”. “The expression ‘control and supervision’ in the context of contract labour was explained by this Court in International Airport Authority of India v. International Air Cargo Workers’ Union-3”. Therefore, their Lordships were of the view that the Industrial Court ought to have held that the first respondent was not a direct employee of the appellant and rejected the application of the first respondent. 12. He also relied upon the Judgment of Hon’ble Delhi High Court reported in Ranbir Singh vs. M/s Sh. Ganga Ram Hospital reported in 2015 (147) FLR 909 which reads as under, (para-16). “Mere remittance of the provident fund by the management No.1 i.e., the principal employer ipso facto does not create any employer – employee relationship between the management No.1 and petitioner – workmen”. 13. Heard learned counsel for both parties. The grounds urged by the petitioner are that PF contributions were paid under Company’s code and even the ESI contribution was also paid under the Company’s account. Though he was initially appointed by Vijaya Engineering, his services were continued in a perennial nature till he was terminated in the year 1999. Ex. W5 to W8 the attendance certificate prove that the petitioner was working in Hardening department of the respondent. 14. Substantiating his submission learned counsel, placed reliance on evidence of WW2 and WW3 who are N. Shankaraiah and P. Krishna Reddy have stated that the petitioner was appointed in the Hardening department in the year 1981 as an operator. He was doing his work in a perennial nature. Without Hardening department, the manufacturing process cannot be completed. 14. Substantiating his submission learned counsel, placed reliance on evidence of WW2 and WW3 who are N. Shankaraiah and P. Krishna Reddy have stated that the petitioner was appointed in the Hardening department in the year 1981 as an operator. He was doing his work in a perennial nature. Without Hardening department, the manufacturing process cannot be completed. The documents marked as Ex. W1 to W3 – PF annual statements, W4 - ESI card, W11 - PF statement and W15 – copy of PF statement which showed the production directly made by the respondent. This further shows that after Vijaya Engineering period was completed, the respondent has taken the petitioner to make production. Thus specific defence has not been taken by the respondent though it is submitted under sub-section 2(9) of ESI Act and Section 40(1) of ESI Act and Section 2(F) Employees Provident Fund Act r/w Section 32 (1) (2) and (3) of the Act which initially had made the employer to contribute the ESI contribution. The principal employer shall pay in respect of every employee whether directly employed by or through an immediate employer, both the employers contribution and the employees contribution. Therefore it is to be seen whether services of the petitioner were with the respondent or with the contractor. It could be seen from evidence of WW2 and WW3. WW2 N. Shankaraiah has deposed “I know Sri. Mallikarjun, the first party herein. He was working in the Hardening department as operator. He was working from 1981 as operator in 714 C Hardening department. The Hardening department is our neighbour department. The nature of work, he was doing was a perennial one. Without Hardening department, the manufacturing process cannot be completed. He had never worked in the Garvebhavipalya Branch. He was working without any break to the duty.” On similar terms WW3 P. Krishna Reddy deposed since 1981 he was working in the Hardening department in a perennial nature for the purpose of production. WW2 in his cross examination has deposed that “I do not know that first party was working under a contractor. First party was working in Hardening department. Management was paying salary to the first party. I have seen the payment of salary to the first party. It is not correct to suggest that Shivashakti contractors were paying salary to the first party. First party was working in Hardening department. Management was paying salary to the first party. I have seen the payment of salary to the first party. It is not correct to suggest that Shivashakti contractors were paying salary to the first party. It is not correct to suggest that first party was not working as an operator in the Hardening department. First party was appointed by the 2nd party management. I do not know whether appointment order was given to the first party or not. Second party was giving appointment orders to all the workers generally.” 15. MW2 evidence in cross examination is that petitioner was working as an operator in Hardening department before the contract between first and second parties contractors. Further he deposed that he was not working at GVP plant. PF and ESI amount was deducted in the salary itself and there were no relationship between petitioner and contractor. It is proved that he was working at Principal plant for Vijaya Engineering and Hemadri contractors but the fact is that even before contract between respondent and with the contractors, petitioner was working. The first party was not working in GVP plant. 16. Subsequently Hemadri though took the work contract with respondent, there is no evidence and materials available to prove that employment of the petitioner also transferred to Hemadri or Shivashakti Enterprises as per evidence MW2. The PF contribution has been made by respondent and petitioner took salary from the respondent. This evidence does not prove that petitioner’s service was directly under the respondent and does not establish the fact, he was working under either contractor Shivashakti or Hemadri. With regard to this, it is relied upon the Judgment of Supreme Court reported in 2009 13 SCC 374 – International Airport Authority of India vs. International Air Cargo Workers’ Union, which reads as under,- “The expression ‘control and supervision’ in the context of contract labour was explained by this Court in International Airport Authority of India v. International Air Cargo Workers’ Union-3. 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. 39. 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.” 17. In the light of the observations made above, case of the petitioner is examined it is found that after the agreement period by Vijaya Engineering, he became employee under the respondent since the respondent has not placed any reliance on subsequent contractors to claim that they were employers of the petitioner. 18. Payment of ESI or PF contribution, it would not decide the relationship of him and employment as per provisions of ESI and PF Act. As submitted by learned senior counsel it shall be perennial duty of the employer or respondent to contribute PF and ESI, but such contributions would not decide the relationship. However in the light of evidence of petitioner, WW2 and WW3 who have deposed that petitioner was working since 1981 and he continued till 1998 till his termination for which the contribution was made by the respondent. 19. The object of ID Act is to make provisions for investigation and settlement of industrial disputes. However, it makes other provisions in respect of lay off, retrenchment, closure etc., the purpose is to bring the conflicts between employer and employees to an amicable settlement. 20. 19. The object of ID Act is to make provisions for investigation and settlement of industrial disputes. However, it makes other provisions in respect of lay off, retrenchment, closure etc., the purpose is to bring the conflicts between employer and employees to an amicable settlement. 20. The materials and evidence available on record, such as evidence of WW1 to WW3 and evidence of MW2 and MW3 show that no doubt petitioner was initially appointed by Vijaya Engineering, but later he was continued in the services of the respondent continuously in a perennial nature. There are no materials to show that he was with the later contractors of the respondent. Now the petitioner has retired from service. Hence he is entitled for only consequential benefits, as a proper adjudication of the matter by giving monetary benefits. I hold it is proper to take Rs.100/- per day which comes to Rs.3,000/- p.m. It will have to be calculated for 12 years (date of termination is 1999 and he retired in the year 2011 i.e., 12 years) which comes to Rs.4,32,000/- interest of 6% Rs.3,11,000/- in total Rs.7,43,000/-. Same is directed to be paid within a period of 8 weeks. Writ petition is accordingly disposed of.