(1.) This writ petition has been filed against the no claim award dated 31.5.1999, passed by the Labour Court, Varanasi, published on 14.10.1999.
(2.) Facts and circumstances giving rise to this case are that the petitioner workman raised the industrial dispute, and the appropriate Government in exercise of the powers under Section 4K of the Industrial Disputes Act, 1947 (hereinafter called Act, 1947) vide order dated 26th July, 1997 made a reference as to whether the termination of the services of the workman w.e.f. 17.4.1995 was in accordance with law, and if not to what relief he was entitled to? In pursuance of the said reference petitioner workman filed a claim petition contending that respondent No. 2 Jal Sansthan was the principal employer and he was employed as a gun man for security purpose on 3rd April, 1992 through the Director of M/s. Smart Ex Serviceman Security. His work was satisfactory as a Watchman/Guard and he had worked under the direct control and supervision of the respondent No. 2. His salary was paid through the contractor. The agreement between the principal employer and the contractor was sham and thus the respondent No. 2 had been guilty of adopting unfair labour practice. More so, the principle of first come last go had not been adopted, In spite of the fact that he had worked for 240 days in a calendar year counting backward from the date of termination, the order dated 17.4.1995 was liable to be set aside as having been passed in violation of the provisions of Section 6N of the Act, 1947. Therefore, he should be reinstated with all consequential benefits and regularized with the principal employer in view of the provisions of the Contract Labour (Regulation and Abolition) Act. 1970 (hereinafter called the Act). The management contested the case submitting that the workman was the employee of the labour contractor non-application No. 3 before the labour court and contract had been signed with the said Firm after inviting quotations from various agencies in addition to the per month salary of Rs. 900. Twenty per cent charges were recovered by the said agent. The agreement was signed on 31.12.1992 and as per the terms of contract the workman was not the direct employee of the said management. In spite of service to non-petitioner No. 3 labour contractor (not impleaded in writ petition) he did not enter appearance. After considering the facts and circumstances of the case and evidence led by the parties before the Labour Court, the Court came to the conclusion that workman was not the employee of the principal employer and he was the employee of the labour contractor. Thus, no claim award was made. Hence, this petition.
(3.) Shri S. A. Murtaza, learned counsel for the petitioner, and Shri S. K. Banerji, learned Standing Counsel and Shri M. K. Shukla, learned counsel appearing for the respondents have raised the same issues and made same submissions which had been raised before the labour court. But Mr. Murtaza could not furnish any explanation as to how the labour contractor who was non-applicant No. 3 before the labour court has not been impleaded in this petition. It appears that as the petitioner workman had not sought any relief against the said contract before that labour court and he was not willing to have any relief against him, he has not impleaded the labour contractor before this Court. But once he was a party before the labour court it was proper to implead him here also.
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