Last Updated on October 30, 2020 by Satish Mishra
In this post we will discuss about employee-employer relationship under The Industrial Disputes act in the case of P.N. Chaturvedi Vs. The Ambassador’s Skychef wherein some employees filled a case for wrongful termination
Industrial dispute Act is a beneficial legislation to solve the dispute among the workmen and employers while also protecting their rights and interests . The concept of workman is central to the concept of an industrial dispute as an industrial dispute can be raised either by a “workman” or an “employer Section 2(s) defines workman as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute. It excludes persons employed in army/Navy/Air Force/Police and those employed in mainly managerial or administrative, supervisory capacity and drawing wages of more than INR 6500. The courts over the years have broadened the scope of definition of workmen under section 2 of the act.
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Facts in brief
P.N. Chaturvedi Vs. The Ambassador’s Skychef, referred to an industrial dispute between the above mentioned parties to the Labour Court with the following terms of reference: “Whether the services of S/Shri P.N. Chaturvedi, Tej Pal Singh, A.P. Singh, Dharam Vir Singh, D.B. Bhardwaj, R.P. Dwivedi, Manoj Kumar, Satbir Singh Rana, Dinesh Tyagi, Nandan Ram, Resham Bahadur Khatri, Ghanshyam, R.S. Upadhyay, M.K. Pandey, Sanjay Kumar, Sajal Kumar Khan, Ram Pal, Umesh Kumar Singh, and Sat Pal Singh have been terminated illegally and/or unjustifiably and if so, to what relief are they entitled and what directions are necessary in this respect?” After receiving the notice of the Labour Department workmen filed their joint statement claim against the management alleging that they were employed by the management on different post/designation, salary etc. They were doing their duties with the entire satisfaction of the management. The management did not provide them the legal facilities like leaves, bonus, over time, minimum wages etc. despite repeated request and demand. Therefore, a legal notice/demand notice was sent through their advocate. The management got annoyed and snatched the I−card of workmen and also misbehaved with them and did not allow them to do duty since 28.02.1998s and terminated their services and despite visiting regularly, the management did not take them back. The workmen are still unemployed . The Management No. 1 then filed their written statement claiming that they never terminated the services as they were never an employee of the securities in the first place . The Management no.1 further stated that they have appointed G4 securities on contract to help them with security services and hence there is no relation of employee -employer between the management no.1 and labourers . The labourers then filed an amendment petition and added Management no.2 as respondents i.e. the G4 Security services.
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Issues involved : The Issues in the following case were whether there was an employer employee relation between Management 1 and the Labourers and whether the employees abandoned their services or their services were terminated illegally. The Management no. 1 in their written statement and affidavit stated that the workmen were employees of Management no.2 with whom they have contact to provide security with Hence management no.1 denied the employer employee relationship. Management no. 1 never employed them or gave them any salary , the labourers were receiving their salaries from Management no.2 .Further Management no.2 did not deny that the labourers were employees under them but claimed that the employees after the termination of contract with management no. 1 never contacted management no. 2 for reinstating their services employment, there was no legal notice or any notice received by management no. 2 by the employees neither was management no. 2 party in the conciliation proceedings ,hence management 2 never terminated their services but they abandoned their services. The contention by the AR for workmen is that since the workmen were initially appointed by management no.2 but they were later on asked to work with the management no.2 under their control, instruction, supervision. They become employees of the management no1 as well as management no.2.
Judgements Cited :
- Range Forest Officer Vs. S.T. Hadimani, 2002
- M. Yellatti Vs. Assistant Executive Engineer, 2006 (108) FLR 213 SCC
- Steel Authority of India vs National Union Water Front Workers and others 2001(91) FLR182 (SC)
- National Thermal Power Corporation & Ors. And Badri Singh Thakur and Ors. FLR−153
To determine the relation between management no.1 and employees the Court has relied on following Supreme Court Judgements
In the Judgment of Range Forest Officer Vs. S.T. Hadimani, 2002 the apex Court determined that the onus of proof of employment is on the employee and not on the employer , the court further clarified that merely a written statement by employees does not amount to proof and hence , the claim was denied by the court. Moreover , in the case of .M. Yellatti Vs. Assistant Executive Engineer, 2006 (108) FLR 213 SCC a similar view was taken by the Apex Court stating that it is the duty of the claimant to provide necessary proof of his employment to the court . The judgment further lays down that mere non−production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground to draw an adverse inference against the management.
Further shedding a light on the contractual relationship between the Management no.1 , 2 and employees the court relied upon the following judgements
In the Apex Court Judgement of Steel Authority of India vs National Union Water Front Workers and others 2001(91) FLR182 (SC)
It is prescribed that if the contractor fails to pay the wages to the contract labour, the principal employer shall pay the full wages or unpaid wages, as the case may be, to the contract labour and a right is conferred on him to recover the same from the amount payable to the contractor; if however, no amount is payable to him then such amount is treated as a debt due by the contractor to the principal employer. Further in the case of In National Thermal Power Corporation & Ors. And Badri Singh Thakur and Ors. FLR−153 it is quoted that
“If the contract is a sham or not genuine, the workmen of the so−called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence, the provisions of section 10 of the Act will not bar either the raising or the adjudication of the dispute. When such a dispute is raised, the industrial adjudicator has to decide whether the contract is a sham or genuine”.
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Findings of the Court :After careful perusal of written statements filed , evidence on record and going through examination and cross examination of employees . The court Dismissed the Claim by the Employees on the following grounds , that the employees failed to establish that they were employees under management no.1 , moreover it s prima facie clear that the Management no.1 is not an employer as per section 2 of the Industrial Dispute act , as the labourers were never employed by the management , or paid by them . In addition to that the court also stated that there was no bogus or sham contracts between Management no. 1 and Management no.2. Hence , management no. 1 had no responsibility towards the employees after the termination of Contract with management No.2 . Additionally Management No.2 was able to prove that the employees abandoned their services, management no. 2 was never informed or given any legal notice , neither did they retrench or terminate their services . The employees were responsible to not reinstate their services with management No. 2 .Hence on the above mentioned grounds the Court found no force in the contentions but forth by the AR and therefore the claim was dismissed.
Conclusion
It is essential that the employees pass the test of employer employee relationship i. e the ‘Hire -Fire’ test before enforcing their rights .The courts have timely broadened the definition of workmen under section 2 of Industrial Dispute act however it is important the employees not only fall under the definition of workmen but also prove that they have been working under a specific management to enforce their claims . Moreover as the courts clarified that for any claim to stand it is important that the services were terminated by the employer and not abandoned by the employees.
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This post was written by Yoshita Gwalani
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