{"id":267825,"date":"2003-07-21T00:00:00","date_gmt":"2003-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-heavy-electrical-ltd-vs-state-of-u-p-and-ors-on-21-july-2003"},"modified":"2018-10-26T21:39:20","modified_gmt":"2018-10-26T16:09:20","slug":"bharat-heavy-electrical-ltd-vs-state-of-u-p-and-ors-on-21-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-heavy-electrical-ltd-vs-state-of-u-p-and-ors-on-21-july-2003","title":{"rendered":"Bharat Heavy Electrical Ltd vs State Of U.P. And Ors on 21 July, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bharat Heavy Electrical Ltd vs State Of U.P. And Ors on 21 July, 2003<\/div>\n
Bench: Shivaraj V. Patil, D.M. Dharmadhikari<\/div>\n
           CASE NO.:\nAppeal (civil)  2459-2461 of 1999\n\nPETITIONER:\nBHARAT HEAVY ELECTRICAL LTD.\n\nRESPONDENT:\nSTATE OF U.P. AND ORS.\n\nDATE OF JUDGMENT: 21\/07\/2003\n\nBENCH:\nSHIVARAJ V. PATIL & D.M. DHARMADHIKARI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(1) SCR 625<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
SHIVARAJ V. PATIL, J. Respondent nos. 6-19 (in writ petition before the
\nHigh Court) were engaged as Garndeners (Malis) to sweep, clean and maintain
\nand look after the lawns and parks inside the factory premises and the
\ncampus of the residential colony of the appellant through the agency of
\nrespondent nos. 3-5. Their services were terminated on 1.12.1988. They
\nraised industrial disputes before the Labour Court. The appellant took up a
\nplea that they were never employed by it and it was not liable to pay any
\namount of compensation or to reinstate them in service. The Labour Court on
\nconsideration of respective contentions and the evidence placed before it,
\npassed the award dated 5.7.1996 directing to re-employ them and for payment
\nof compensation of Rs. 15,000 each for non-compliance of the provisions of
\nSection 6-N of Uttar Pradesh Industrial Disputes Act, 1947 (for short ‘the
\nAct’) besides ordering Rs. 500 as costs to each one of them. Aggrieved by
\nthe award, the appellant filed Civil Misc. Writ Petition No. 2109 of 1997
\nbefore the High Court. On 30.11.1998, Deputy Labour Commissioner issued a
\ncertificate to the Collector for recovery of Rs. 2,17,000. Challenging the
\nsaid certificate, Civil Misc. Writ Petition No. 41787 of 1998 was filed by
\nthe appellant. In the 3rd Writ Petition No. 1654 of 1999, the appellant
\nquestioned the validity and correctness of the order dated 2.1.1999 under
\nwhich the appellant was asked to show-cause why prosecution should not be
\nlaunched under Section 14-A of the Act.\n<\/p>\n
The High Court by the impugned common order dismissed Writ Petition Nos.
\n2109 of 1997 and 41787 of 1998 concurring with the findings recorded by the
\nLabour Court. Writ Petition No. 1654 of 1999 was disposed of directing no
\nfurther action for initiating criminal proceedings under Section 14<\/a> A of
\nthe Act if the appellant deposited a sum of Rs. 2,17,000 within a period of
\none month and in the event of failure of depositing the amount, there would
\nbe no impediment in launching criminal proceedings against the appellant.\n<\/p>\n
Aggrieved by and no satisfied with this common impugned order these appeals
\nare brought before this Court.\n<\/p>\n
On behalf of the appellant, the following contentions were urged:-\n<\/p>\n
(1)    That the findings recorded by the Labour Court as affirmed by the
\nHigh Court are perverse being contrary to the evidence placed on record.\n<\/p>\n
(2)    That the High Court committed a serious error in applying test of
\ncontrol in relation to the work of the respondents-workmen having regard to
\nthe definition of ’employer’ contained in Section 2(i)(iv)<\/a> of the Act as
\nthe work of the respondents-workmen was not part of the industry.\n<\/p>\n
(3)    That the respondents-workmen had not worked for 240 days to complain
\nviolation of Section 6-N<\/a>.\n<\/p>\n
Submissions were made on behalf of the respondent-workmen supporting the
\nimpugned order.\n<\/p>\n
The Labour Court on the basis of the evidence concluded that the appellant
\nwas the principal employer. In the award, the Labour Court in this regard
\nhas state thus:-\n<\/p>\n
“From the statements of Ram Swarup who is Head Mali under Employer No. 1.
\nIt appears that though the concerned workers were employed at work by the
\ncontractor but he himself used to take work from them in the capacity of
\nHead Gardener and he also used to look after their work. The contractor
\nused to pay salary only and their attendance were used to be marked in a
\nseparate Register by another Head Gardener Sadhu Ram and the Register was
\ngot torn by Manager Shri Varshney so that no proof may remain and after
\ntearing of register workers were removed. From these, it appears that
\nemployer no.l had control over the plaintiff workers and they cannot be
\nsaid to be the workers only of the contractor. It appears that with the
\nobject to keep them out of the ambit of U.P. Industrial Dispute Act, this
\nmethod was adopted that work was taken from them by the employee of the
\nemployer and payment should be shown to have been made by the contractor.
\nFrom the statements of Shri K.P.S. Chauhan contractor it appears that he
\nstill has work contract in BHEL (Laying of Sewer Pipe Line). From the
\ncomplaints made by workers in this regard this fact is confirmed. As per
\nthe statements of worker Vinond Kumar, before tearing of the Attendance
\nRegister, worker had got photocopies of these done by taking these
\nregisters from Head Mali which copies have been filed by the worker party
\nin the Court. Not filing the records concerning the attendance of workers
\nby both employer no. 1 and 2 and destroying the same and filing of
\nphotocopies of the same by the worker party prove that employer no. I can
\nalso not escape from the liability of illegal termination of services of
\nthese workers. Hence, it is decided that the Respondent No 1 is also the
\nemployer of plaintiff-workers, though principle employer ”\n<\/p>\n
The High Court took note of the fact that the respondents-workmen were
\nengaged for working as gardeners in the factory premises, campus and
\nresidential colony of the appellant; Ram Swarup, Head Mali was admittedly
\nemployed by the appellant; he used to supervise the work of the
\nrespondents-workmen; another employee of the appellant, namely, Sadhu Ram
\nused to maintain the record of attendance of the respondents-workmen; when
\ndispute arose consequent upon disengagement of the workman, he destroyed
\nthe attendance register by tearing it off at the instance of one Mr.
\nVarshney who was working as Manager with the appellant. Further, in the
\nimpugned order, the High Court observed that if the respondents-workmen
\nwere in fact engaged by independent contractors, the record of their
\nattendance should have been maintained by them and to show their control
\nand supervision of the work performed by the workmen. Thus, considering the
\nevidence, the facts ‘and circumstances of the case and findings of fact
\nrecorded by the Labour Court, the High Court held that the workmen were
\nunder the direct employment, supervision and control of the appellant
\nobserving that sometimes, the employers, with a view to get over stringent
\nprovision of the labour law resort to engage the workmen through some
\nintermediary and such an arrangement has to be termined as artificial.
\nFurther after referring to the case of Hussainbhai Calicut v. The Alath
\nFactory Thizolali Union Kozhikode and Ors<\/a>., [1978] 4 SCC 257, the High
\nCourt in the impugned order has stated thus:-\n<\/p>\n
“The findings of facts recorded by the Labour Court cannot be scrutinized
\nor sifted in this Writ Petition. The tone and tenor of the employment of
\nthe Respondent-workmen makes it amply clear that they were, for all
\npractical purposes, were the employees of Petitioner. The Petitioner had
\nretained directed control over the work and the duties of the Respondent-
\nworkmen. The attendance of the workmen was also recorded by an employee of
\nthe Petitioner. The involvement of the alleged direct contractors was
\nmerely a figurative. The engagement of the contractor was sham and not
\ngenuine.  Therefore, if the fictitious agency, which was brought into
\nexistence as a device to camouflage the status of the Respondent-workmen,
\nis ignored, they would be treated to be in the direct employment of the
\nPetitioner.”\n<\/p>\n
High Court did not find any illegality or irregularity in the award passed
\nby the Labour Court so as to interfere with it exercising writ
\njurisdiction. We have no good reason or valid ground to upset the
\nconcurrent finding of fact recorded by the Labour Court as affirmed by the
\nHigh Court in this regard.\n<\/p>\n
It appears to us that the argument based on the definition of employer
\nunder Section 2(i)(iv)<\/a> of the Act was not urged before the High Court. It
\nwas urged on behalf of the appellant that aforesaid Hussainbhai Calicut
\ncase was distinguishable and it has no application to the facts of the
\npresent case stating that the work done by the workmen in that case was an
\nintegral part of the industry concerned and in the present case, the
\nworkmen were engaged as Gardeners and their work was not an integral part
\nof the industry. There is nothing in the said judgment to say that the
\nworkmen engaged for the work in the premises of the industry though their
\nwork was not an integral part of the industry, cannot be employees of the
\nindustry. The two tests stated in the said case are available in paragraphs
\n5 and 6 which read:-\n<\/p>\n
“5. The true test may, with brevity, be indicated once again. Where a
\nworker or group of workers laborers, to produce goods or services and these
\ngoods or services are for the business of another, that other is, in fact,
\nthe employer. He has economic control over the workers’ subsistence, skill,
\nand continued employment. If he, for any reason, chokes off, the worker is,
\nvirtually, laid off. The presence of intermediate contractors with whom
\nalone the workers have immediate or direct relationship ex contracts is of
\nno consequence when, on lifting the veil or looking at the conspectus of
\nfactors governing employment, we discern the naked truth though drapped in
\ndifferent perfect paper arrangement, that the real employer is the
\nManagement, not the immediate contractor, Myriad devices, half-hidden in
\nfold after fold of legal form depending on the degree of concealment needed
\nthe type of industry, the local conditions and the like may be resorted to
\nwhen labour legislation casts welfare obligations on the real employer
\nbased on Articles 38, 39, 42,43 and 43-A of the Constitution. The court
\nmust be astute to avoid the mischief and achieve the purpose of the law an
\nnot be misled by the maya of legal appearances.\n<\/p>\n
6. If the livelihood of the workmen substantially depends on labour
\nrendered to produce goods and services for the benefit and satisfaction of
\nan enterprise, the absence of direct relationship or the presence of
\ndubious intermediaries or the make-believe, trappings of detachment from
\nthe Management cannot snap the real life-bond. The story may vary but the
\ninference defies ingenuity. The liability cannot be shaken off.”\n<\/p>\n
Looking to what is stated in paras extracted above, it is clear that where
\nworkman-labour is engaged to produce goods or services and these goods or
\nservices are for the business of another, the other is employer. The work
\nof the respondents-workmen is not totally disassociated in fact between
\nthem and the appellant to say that they were not employees of the appellant
\njudged by what is stated in para 7 of the same judgment in the following
\nwords:-\n<\/p>\n
“7. Of course, if there is total dissociation in fact between the disowning
\nManagement and the aggrieved workmen, the employment is, in substance and
\nin real-life terms, by another. The Management’s adventitious connections
\ncannot ripen into real employment<\/p>\n
The definition of ’employer’ given in Section 2(i)(iv)<\/a> of the Act is an
\ninclusive definition. If the respondents-workmen as a matter of fact were
\nemployed with the appellant to work in their premises and which fact is
\nfound established after removing the mask or facade of make-believe
\nemployment under the contractor, the appellant cannot escape its liability.\n<\/p>\n
The learned counsel for the appellant wanted to take support from the
\nConstitution Bench judgment of this Court in Steel Authority of India Ltd
\nand Ors. v. National Union Waterfront Workers and Ors<\/a>., [2001] 7 SCC I. For
\nthat purpose he took us through paras 107 to 116. In the said judgment, the
\nprovisions of The Contract Labour (Regulation and Abolition) Act, l970 l
\ncame up for consideration and interpretation. After detailed analysis of
\nthe provisions and consideration of various decisions, in para 107 contract
\nlabour were classified in three categories. In para 108-116, the issue
\nwhether on a contractor engaging contractor, labour in connection with the
\nwork entrusted to him by a principal employer, the relationship of master
\nand servant between him (the principal employee) and the contract labour
\nemerges. An extreme stand was taken by learned Senior Counsel in that case
\nthat the engagement of contract labour by the contractor in any work of or
\nin connection with the work of an establishment, the relationship of master
\nand servant is created between the principal employer and the contract
\nlabour. In dealing with the said contention, various earlier cases decided
\nby this Court were referred to including the case of Hussainbhai Calicut
\n(supra). The extreme contention was rejected From the preusal of paragraphs
\n107-116, it is clear whether a workman is an employee of principal employer
\nor not depends on the facts and circumstances of a given case. The case of
\nHussainbahi Calicut (supra) is neither dissented nor diluted. On the other
\nhand, it is held that the said case is covered by class (ii) of para 107
\nwhich reads:-\n<\/p>\n
“107……………………………………………………………..
\n…………………………………………….\n<\/p>\n
(ii) where the contract was found to be a sham and nominal, rather a
\ncamouflage, in which case the contract labour working in the establishment
\nof the principal employer were held, in fact and in reality, the employees
\nof the principal employer himself. Indeed, such cases do not relate to
\nabolition of contract labour but present instances wherein the Court
\npierced the veil and declared the correct position as fact at the stage
\nafter employment of contract labour stood prohibited………….”\n<\/p>\n
This apart, the finding that the respondents-workmen were the employees of
\nthe appellant, does not rest merely on the test of control. The other
\nevidence and facts and circumstance of the case were also kept in mind in
\nrecording such a finding including a vital fact that the appellant did not
\nproduce the records alleging that they were not available which led to
\ndrawing adverse inference against them. It is not possible for us to hold
\nthat such concurrent findings recorded by the Labour Court and the High
\nCourt that the workmen were to be treated as the employees of the appellant
\nare either perverse or based on no evidence or untenable at all.\n<\/p>\n
From the impugned order, it also does not appear that any contention was
\nurged before the High Court that the respondents-workmen did not net-work
\nfor more than 240 days in 12 calendar months. Be that as it may, in view of
\nthe finding of fact recorded by the Labour Court as affirmed by the High
\nCourt that the respondents-workmen worked for more than 240 days in 12
\ncalendar months, we do not find any good reason to take a different view.\n<\/p>\n
Thus, we find no merit in any of the submissions made on behalf of the
\nappellant. Consequently, these appeals are liable to be dismissed.
\nAccordingly, they stand dismissed with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bharat Heavy Electrical Ltd vs State Of U.P. And Ors on 21 July, 2003 Bench: Shivaraj V. Patil, D.M. Dharmadhikari CASE NO.: Appeal (civil) 2459-2461 of 1999 PETITIONER: BHARAT HEAVY ELECTRICAL LTD. RESPONDENT: STATE OF U.P. AND ORS. DATE OF JUDGMENT: 21\/07\/2003 BENCH: SHIVARAJ V. PATIL & D.M. DHARMADHIKARI JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-267825","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBharat Heavy Electrical Ltd vs State Of U.P. 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