TMI Blog2019 (2) TMI 2049X X X X Extracts X X X X X X X X Extracts X X X X ..... insofar as they are concerned - it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL. Appeal allowed. - CIVIL APPEAL NOS. 1799-1800 OF 2019 (Arising out of SLP (C) Nos. 33747-33748 of 2014) WITH CIVIL APPEAL NOS. 1837-1838 OF 2019 SLP(C) Nos. 33749-33750 of 2014, CIVIL APPEAL NOS. 1915-1916 OF 2019 SLP(C) Nos. 36689-36690 of 2014 - - - Dated:- 20-2-2019 - CIVIL APPEAL NOS. 1919-1920 OF 2019 SLP(C) Nos. 597-598 of 2015, CIVIL APPEAL NOS. 1885-1886 OF 2019 SLP(C) Nos. 36679-36680 of 2014, CIVIL APPEAL NOS. 1883-1884 OF 2019 SLP(C) Nos. 36672-36673 of 2014, CIVIL APPEAL NOS. 1887-1888 OF 2019 SLP(C) Nos. 36683-36684 of 2014, CIVIL APPEAL NOS. 1913-1914 OF 2019 SLP(C) Nos. 36692-36693 of 2014, CIVIL APPEAL NOS. 1917-1918 OF 2019 SLP(C) Nos. 595-596 of 2015, CIVIL APPEAL NOS. 1921-1922 OF 2019 SLP(C) Nos. 471-472 of 2015, CIVIL APPEAL NOS. 1893-1894 OF 2019 SLP(C) Nos. 36676-36677 of 2014, CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2014 CIVIL APPEAL NOS. 1911-1912 OF 2019 SLP(C) Nos. 36668-36669 of 2014, CIVIL APPEAL NOS. 1839-1840 OF 2019 SLP(C) Nos. 35282-35283 of 2014, CIVIL APPEAL NOS. 1863-1864 OF 2019 SLP(C) Nos. 35303-35304 of 2014, CIVIL APPEAL NOS. 1861-1862 OF 2019 SLP(C) Nos. 35290-35291 of 2014, CIVIL APPEAL NOS. 1859-1860 OF 2019 SLP(C) Nos. 35319-35320 of 2014, CIVIL APPEAL NOS. 1857-1858 OF 2019 SLP(C) Nos. 35286-35287 of 2014, CIVIL APPEAL NOS. 1835-1836 OF 2019 SLP(C) Nos. 33790-33791 of 2014, CIVIL APPEAL NOS. 1855-1856 OF 2019 SLP(C) Nos. 35323-35324 of 2014, CIVIL APPEAL NOS. 1881-1882 OF 2019 SLP(C) Nos. 35288-35289 of 2014, CIVIL APPEAL NOS. 1853-1854 OF 2019 SLP(C) Nos. 35311-35312 of 2014, CIVIL APPEAL NOS. 1827-1828 OF 2019 SLP(C) Nos. 33761-33762 of 2014, CIVIL APPEAL NOS. 1833-1834 OF 2019 SLP(C) Nos. 33757-33758 of 2014, CIVIL APPEAL NOS. 1829-1830 OF 2019 SLP(C) Nos. 33771-33772 of 2014, CIVIL APPEAL NOS. 1889-1890 OF 2019 SLP(C) Nos. 36687-36688 of 2014, CIVIL APPEAL NOS. 1831-1832 OF 2019 SLP(C) Nos. 33766-33767 of 2014, CIVIL APPEAL NOS. 1823-1824 OF 2019 SLP(C) Nos. 33798-33799 of 2014 HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN AND HON'BLE MR. JUSTICE VINEET SAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, it was held that all such workers, being 64 in number, were entitled to be reinstated with immediate effect but without backwages. From this Labour Award, a review petition was filed by the appellant, in which it was clearly stated that no such concession, as recorded by the Labour Court, was made before it. Further, notification dated 24.04.1990 had no application as Bharat Heavy Electricals Ltd. (BHEL) was exempted therefrom and, therefore, to apply this notification to the facts of this case was also wrong. On 18.05.2011, this review was dismissed by the Labour Court holding: Considering the above noted discussion, as made in award dated 01.11.2009, I find force in the argument of opposite part-2 that as far as notification dated 24.04.1990 is concerned, this court has already considered and has given its verdict on this notification and now on review application no contrary inference can be drawn by this court as prayed by the applicant. As far as Notification dated 23.07.2010 (supra) is concerned, this notification was not issued by Government when award was passed. As such, this notification cannot be said applicable at that time and no benefit of later issued not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eks, the same will not be dismissed on the ground of delay. Since special leave petitions are not being entertained on the above ground, liberty is granted to the petitioner to challenge the impugned order, in case, review applications are dismissed by the High Court. Special leave petitions are disposed of. The appellant, then filed a review petition before the High Court, which disposed of the review stating: BHEL has submitted written statement before the learned Labour Court. Paragraph 3 thereof reads as under: 3.The workman concerned in the dispute Sri Mahendra Prasad Jakhmola was never engaged by BHEL Haridwar and he was not their employee and they were not his employers. It appears that he might have been engaged and employed by the contractor Sri Madan Lal who also has been made party as employer in the Industrial Dispute under reference. Plain reading of paragraph 3 of the written statement would go to suggest that even BHEL is not sure as to whether workmen were supplied by the contractor or were engaged by the BHEL. That being so, even if there was any Contract Labour Agreement between the BHEL and Madan Lal, alleged contractor, same seems to be sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of direct employment between his client and the workmen. Ms.Asha Jain, on the other hand, has pointed out to us that we should not exercise our discretionary jurisdiction under Article 136 of the Constitution, inasmuch as the Labour Court Award is a fair Award, as only reinstatement was ordered without backwages. She also argued that, at no stage, had BHEL, which is a Government Company, reinstated her clients despite the fact that there is no stay granted in their favour. She went on to add that the concession that was made was rightly made before the Labour Court, and that the review petition did not contain any statement by any authorised representative, who made such concession, that he had not done so. She countered the argument that gate passes were not the only basis of the Labour Court, concluding that a direct relationship exists between the appellant and her clients. She argued that despite the change of contractors four times over, the same workers continued showing, therefore, that there was a direct relationship between these workmen and the employer. She also pointed out from certain documents that the contractor got a 10 per cent profit and otherwise he had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession was ever made. Moreover, quite apart from this plea and the counter plea of Ms. Jain that the person who has made such concession should have stated that he did not do so, concessions on mixed questions of fact and law cannot decide cases as the evidence as a whole has to be weighed and inferences drawn therefrom. Even a concession on facts disputed by a respondent in its written statement cannot bind the respondent. Thus, in Swami Krishnanand Govindananad v. Managing Director, Oswal Hosiery (Regd.) [(2002) 3 SCC 39, this Court held: 2. . It appears that when the case was posted for trial, the learned counsel appearing for the respondent conceded the facts disputed by the respondent in his written statement before the Court. That statement of the advocate was recorded by the Additional Rent Controller thus: The respondent s learned counsel has admitted the ground of eviction and also the fact that the applicant is a public charitable institution and for that purpose it required the premises. . 3. . Whether the appellant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . . (iv) where the owner of any industry in the course of or for the purpose of conducting the industry contracts with any person for the execution by or under such person of the whole or any part of any work which is ordinarily part of the industry, the owner of such industry; A look at this provision together with the judgment in Basti Sugar Mills Ltd. v. Ram Ujagar and Ors. [(1964) (2) SCR 838) relied upon by Ms. Jain, would show that in order that section 2(i)(iv) apply, evidence must be led to show that the work performed by contract labour is a work which is ordinarily part of the industry of BHEL. We find, on the facts of the present case, that no such evidence has, in fact, been led. Consequently, this finding is also a finding directly applying a provision of law without any factual foundation for the same. This being the case, it is clear that the Labour Court has arrived at a conclusion which no reasonable person could possibly arrive at and ought, therefore, to have been set aside. Apart from the Labour Court dismissing a review from its own order, we find that the High Court, in the first impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten statement then goes on to be speculative in stating that it appears that a workman might have been engaged as an employee by a particular contractor. A plain reading of this written statement would certainly not suggest that BHEL is not sure as to whether workmen were or were not supplied by a contractor, or engaged by BHEL. What is clear from the written statement is that BHEL has denied that the workmen were engaged by BHEL or that the workmen were BHEL s workmen. From this to conclude that the transaction seems to be sham , is again wholly incorrect. Apart from this, it is also incorrect to state that BHEL has not placed on record any material to demonstrate that under the alleged labour contract, payment was ever made in favour of Madan Lal, the alleged contractor. It has been correctly pointed out by learned counsel appearing on behalf of BHEL that in the very first sentence of the cross examination of the workmen, before the labour court, the workmen admitted that payments of their wages were made by four contractors including Shri Madan Lal. Also, the fact that Madan Lal was paid under the agreement with BHEL was never disputed. Indeed, Ms. Jain s argument that Madan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor. From this judgment, it is clear that test No. 1 is not met on the facts of this case as the contractor pays the workmen their wages. Secondly, the principal employer cannot be said to control and supervise the work of the employee merely because he directs the workmen of the contractor what to do after the contractor assigns/ allots the employee to the principal employer. This is precisely what paragraph 12 explains as being supervision and control of the principal employer that is secondary in nature, as such control is exercised only after such workman has been assigned to the principal employer to do a particular work. We may hasten to add that this view of the law has been reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court are perverse, it is difficult to accede to this argument. Equally, the argument that the so-called employer has not complied with the Labour Court s Award, despite there being no stay, is an argument that must be rejected. In that a contempt petition could always have been moved on behalf of the workmen for implementation. No such thing has been done in the present case. The argument that the contractor, in the facts of the present case, gets only a 10 per cent profit and nothing more, is again an argument that needs to be rejected in view of the clear and unequivocal evidence that has been led in this case. The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. Apart from this, it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL. Ms. Asha Jain s reliance upon the judgment in Steel Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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