MANAGEMENT OF ASHOK HOTEL Vs. THEIR WORKMAN

JUDGEMENT

(1.) By the present petition the Petitioner impugns the award dated 5 th October, 2005 whereby the Petitioner was directed to frame a policy and consider the case of 20 members of the Respondent No.1 for regularization in terms of the policy.

(2.) Learned counsel for the Petitioner contends that the impugned award is contrary to the law laid down by the Constitution Bench in Steal Authority of India Ltd. and others vs. National Union Waterfront Workers and others, 2001 7 SCC 1 wherein it was held that for violation of Sections 7 and 12 of the Contract Labour (Regulation and Abolition) Act (in short "the CLRA Act?) action is provided under Sections 23 and 25 of the CLRA Act and the scope cannot be extended beyond it. As settled in International Airport Authority of India vs. International Air Cargo Workers Union and another, 2009 13 SCC 374 the industrial adjudicator can grant relief only if it is found that the contract between the principal employer and the contractor is sham, nominal and merely a camouflage to deny employment to the employee and to hold that in fact direct employment exists, the following test are required to be applied, that is, who pays the salary, who has the power to remove/dismiss from service or initiate disciplinary action, who can tell the employee the way in which work should be done. In a case where it is not proved in the industrial adjudication that the contract was a sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. Applying the test laid down by the Hon?ble Supreme Court there is nothing on record that the Petitioner paid salary to the members of the Respondent No.1. Further the Petitioner had no control over them as regards their dismissal etc. was concerned. The three tests laid down by the Hon?ble Supreme Court are in favour of the Petitioner. Thus the finding of the Tribunal that there exists an employer employee relationship is erroneous.

(3.) Learned Trial Court has selectively relied upon the documents and even as per the documents relied upon no case is made out to come to a conclusion that there exists an employer employee relationship. The identity cards of WW1, WW3 and WW4 were issued by M/s Sparkling Enterprises. Even as per the document Ex. WW4/5 the employer?s contribution to the provident fund was being deposited by M/s Sparkling Enterprises which had its own code number. In the tripartite settlement arrived at between the parties and relied by the learned Trial Court, since M/s Helpline Hospitality had not given the wages for the months May to July, 2000, the Petitioner paid the wages and the same cannot be a ground to come to the conclusion that the Petitioner was paying the salary. Ex. WW6/3A is a computer generated document and does not show that this was the wage sheet of the employees of the Petitioner. Further the Management witness MW1 has not been confronted with this document. A perusal of the tripartite settlement Ex. WW6/6 would show that the payment wage sheets were supplied by the Respondent as agreed in the agreement. The Management witness has been confronted with the letter dated 20 th April, 2004 which is not exhibited in the case and thus cannot be looked into. Further the said document only informs the contractor regarding the legal position under the Shops and Establishment Act relating to the sanction of leaves. Further this letter was related to N M Manpower Ltd. and was not connected with the case of the Respondents/workmen in the present petition.