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2019 DIGILAW 1197 (HP)

Rakesh Sharma v. Indian Oil Corporation

2019-08-21

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, petitioner has challenged the award passed by the Court of learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh, dated 31.01.2013, vide which, the following Reference was made to it by the appropriate government:- "Whether the action of the management of Indian Oil Corporation in ordering disengagement/termination of services of Sh. Rakesh Sharma, engaged through contractor and who has completed 240 days of service is just and legal? If not what relief the workman is entitled to and from which date?" 2. The Reference so made to it by the appropriate government was answered by learned Presiding Officer, Central Government Industrial Tribunal-Labour Court-II, Chandigarh, as under:- "Management has filed certain papers Exhibit M1 to M12 and it was argued by the learned counsel for the management that the name of the workman does not figure in these papers hence it is established that he was not an employee of the management. But I do not agree with the argument of the learned counsel. A negative evidence does not prove any fact. I need not to go into the plea of the management that the workman was the contractor's employee because the workman himself has failed in proving any relationship between him and the management. There is no evidence to show that the workman was the employee of the management. Hence, there is no question of terminating the services by the management. The workman is not entitled to any relief. The reference is accordingly answered against the workman. Let two copies of the award be sent to the Central government for further necessary action." 3. Brief facts necessary for adjudication of this case are that an industrial dispute was raised by the present petitioner feeling aggrieved by the factum of his being terminated by the Employer purportedly in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). Pursuant to the Industrial dispute having been raised by the workman, appropriate government made the afore cited Reference for adjudication to learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh. 4. Pursuant to the Industrial dispute having been raised by the workman, appropriate government made the afore cited Reference for adjudication to learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh. 4. By way of the impugned award, learned Presiding Officer has answered the Reference by holding that the workman was not entitled for any relief as there was no evidence on record to demonstrate that the workman was not the employee of the management/present respondent. 5. A perusal of the claim statement filed by the workman filed before the learned Court below reveals that it was mentioned therein that he was employed as Electrical Helper on 23.03.1996 and he continued to work as such till 04.08.2000, when his services were terminated by the management by assigning no reason in violation of the provisions of Section 25-F of the Industrial Disputes Act. The prayer of the workman was to declare the said act of the management of terminating his services w.e.f. 04.08.2000 to be act illegal act being violative of the statutory provisions of the Industrial disputes Act with a direction to the management to reinstate him in service with continuity of service and back wages. 6. Written statement on record filed by present respondent No. 1 before the learned Court below demonstrates it was mentioned therein that there did not exist any relationship of employer and employee or master and servant between the said respondent and the workman as the workman was not engaged by the respondent-Corporation but he was employed by M/s U.K. Electricals Limited, with whom, respondent was having an agreement with regard to supply of manpower. Vide impugned award, learned Court below has upheld the said preliminary objection of the respondent by holding that when a person asserts that he is the employee of a management and the said fact is denied by the management, then the onus is upon the workman to prove that there is a relationship of employer and employee between the parties and it is not for the management to prove that workman was its employee. Learned Court further held that as there was no evidence to show that the workman was the employee of the management, hence, there was no question of his services being terminated by the management. On these bases, learned Court held that workman was not entitled for any relief as prayed for. 7. Learned Court further held that as there was no evidence to show that the workman was the employee of the management, hence, there was no question of his services being terminated by the management. On these bases, learned Court held that workman was not entitled for any relief as prayed for. 7. Feeling aggrieved, the petitioner-workman filed this petition. 8. I have heard learned Counsel for the parties and gone through the impugned order as also the record of the case. 9. The moot issue which this Court is to adjudicate is whether the findings of fact returned by learned Court below that the workman had failed to prove that there existed any relationship of employee and employer between him and the management is a perverse finding so returned by the learned Court below or said finding is duly borne out from the record of the case? 10. A perusal of the record demonstrates that there is not even an iota of evidence on record placed by the workman to demonstrate that there was a relationship of employee and employer between him and respondent No. 1. Except the bald assertion of the workman that he was an employee/workman of the respondent-Corporation, there is no material on record to substantiate this fact. Reliance placed on the log books and EST Identity Card, in my considered view, is of no relevance because it is not in dispute that the workman was in fact working in the Oil Depot of the respondent-Corporation, however, the fact remains that he was not working in his capacity as a workman engaged by the respondent-Corporation, but was working as a workman, who was engaged by M/s U.K. Electrical Limited. 11. Learned Counsel for the petitioner has argued that even if it is assumed that the petitioner was engaged by M/s U.K. Electricals Limited, yet there will be a deemed fiction that he was a workman engaged by the Indian Oil Corporation because as the Contractor was not registered under Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970 as the Contractor was not registered for engaging contract labour for electrical works. In my considered view there is no force in the said contention of learned Counsel for the petitioner because this was not the case set up by the petitioner either in the Industrial dispute so raised by him or in the Claim as it stood filed before the learned Labour Court. The case of the petitioner was throughout that he was a workman engaged by the respondent-Corporation. As he failed to establish relationship of master and servant between him and the respondent-Corporation, it cannot be said that the learned Court below has erred in not granting relief in his favour. Accordingly, this petition, being devoid of any merit, is dismissed. Pending miscellaneous application(s), if any, also stand dismissed. However, it is clarified that adjudication done in this petition shall not come in the way of the petitioner to invoke his rights against the contractor, in accordance with law.