Two writ petitions: The Senior Regional Manager, Hindustan Petroleum Corporation Ltd. v. K.R. Vijayan Kunnath and M.C. Francis Marakkanveettil (WP(C).677/2006) and K.R. Vijayan Kunnath and M.C. Francis Marakkanveettil v. Senior Regional Manager, Hindustan Petroleum Corporation Ltd. and Labour Court, Ernakulam (WP(C).10644/2006))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **WP(C).No.677 OF 2006(E)** **INDUSTRIAL DISPUTE No.3/1997 (CENTRAL) OF CENTRAL GOVERNMENT LABOUR COURT, ERNAKULAM DATED 29.3.2005** **--------------------** ## **- PETITIONER :** **THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., TATAPURAM P.O., ERNAKULAM, COCHIN - 682 014.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.K.JOHN MATHAI** **- RESPONDENTS :** - **1 SRI.K.R.VIJAYAN KUNNATH HOUSE, IRIMBANAM, ERNAKULAM DISTRICT.** - **2 M.C.FRANCIS MARAKKANVEETTIL, KALOOR, ERNAKULAM.** - **3 M.T.SUNIL MADAPLAVUTURUTHIL HOUSE, NJARACKKAL, MANJANAKAD, ERNAKULAM DIST.** **4 LABOUR COURT ERNAKULAM.** - **BY ADV. SRI.K.V.GEORGE BY ADV. SRI.B.ASHOK SHENOY BY ADV. SRI.P.S.GIREESH BY ADV. SRI.P.N.RAJAGOPALAN NAIR BY ADV. SRI.RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2019, ALONG WITH WP(C).10644/2006(P), THE COURT ON 1303-2020 DELIVERED THE FOLLOWING:** WP(C).No.677 OF 2006(E) -: 2 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **WP(C).No.10644 OF 2006** ## **- PETITIONERS :** **1 K.R.VIJAYAN KUNNATH HOUSE, IRUMPANAM, ERNAKULAM DISTRICT. 2 M.C.FRANCIS MARAKKAN VEETTIL KALOOR, ERNAKULAM.** **BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.S.GIREESH SRI.P.N.RAJAGOPALAN NAIR SRI.RIYAL DEVASSY** **- RESPONDENTS :** - **1 SENIOR REGIONAL MANAGER HINDUSTAN PETROLEUM CORPORATION LTD., TATAPURAM P.O., ERNAKULAM.** - **2 LABOUR COURT, ERNAKULAM.** **R1 BY ADV. SRI.E.K.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2019, ALONG WITH WP(C).677/2006(E), THE COURT ON 13-032020 DELIVERED THE FOLLOWING:** WP(C).No.677 OF 2006(E) -: 3 :- ## **JUDGMENT** ## **Dated this the 13th day of March, 2020** These writ petitions are filed with regard to an award passed by the Central Government Labour Court, Ernakulam. W.P.(C) No.677/2006 is filed by the Management, challenging the award in as much as it directs the reinstatement of the respondent Nos.1 and 3, who are workmen. The contention of the Management is that the specific argument of the Management that the workmen had been engaged by contractors, who had been entrusted with work by the Company and that they were not employees of the Management had not been considered by the Labour Court. It is contended that the findings of the Labour Court are completely unreasonable and perverse and are not liable to be sustained. 2. W.P.(C) No.10644/2006 is filed by the workmen, who are respondent Nos.1 and 2 in the Management's writ petition. They challenge the award of the Labour Court to the extent it denies back wages and regularisation and seeks the grant of such reliefs as well. 3. Heard Sri.E.K.Nandakumar, the learned Senior Counsel for the petitioner in W.P.(C) No.677/2006 and Sri.Ashok B. Shenoy, WP(C).No.677 OF 2006(E) -: 4 :- the learned counsel appearing for the workmen/petitioners (respondents 1 and 2 in W.P.(C) No.677/2006) in W.P.(C) No.10644/2006 as well as the learned Government Pleader. 4. The learned Senior Counsel for the petitioner in W.P.(C) No.677/2006 would contend that the Management habitually engaged contractors for the loading of tank wagons from the Cochin Refineries Limited. It is stated that all the major oil companies, that is, Indian Oil Corporation (IOC), the Bharat Petroleum Corporation Limited (BPCL) and the Hindustan Petroleum Corporation Limited (HPCL) used to carry out the checking and verification of the loading of tank wagons by engaging contractors, who in turn engaged necessary staff for the said purpose. It is stated that the contractors engaged daily wage workers for carrying out the work allotted to them. It is stated that the work itself is intermittent in nature. It is submitted that the Management, HPCL had engaged one contractor for carrying out the work in question for the period from 1.6.1989 to 31.5.1990. Ext.P1 is the copy of the contract. Later, for the period from 1.8.1991 to 31.7.1992 also Ext.P2 contract was entered into. It is submitted that these documents were produced before the Labour Court as well. It is stated that the workmen had been engaged by WP(C).No.677 OF 2006(E) -: 5 :- the contractors during different periods in time and had been working under the direct supervision and control of the concerned contractors, who were their employers. It is stated that an industrial dispute was raised by respondents 1 to 3 contending that they were workmen employed by the petitioner Management from the year 1986 onwards and were doing works like categorisation of tank wagons, checking of the filled tank wagons, witnessing of the sealing of each of the wagons, preparation of loading statements and sending of telegrams to the destination depots indicating wagon number etc. It was contended that they had submitted representations before the Management for regularisation of their service, but they had been retrenched with effect from 9.6.1992. 5.The dispute was referred for conciliation and on failure of the conciliation, Ext.P3 failure report was sent. The Central Government referred the dispute for adjudication. 6. It is stated that Ext.P4 claim statement was filed by the workmen and Ext.P5 counter statement was filed by the Management. After considering the contentions and the evidence, the Labour Court found that the Management had been paying the EPF and ESI contributions in respect of the workmen and that the contention that they were engaged by the contractor was therefore WP(C).No.677 OF 2006(E) -: 6 :- not sustainable. The award was passed holding that the retrenchment of the workmen was illegal and directing the Management to reinstate the workmen in service as daily wage workers. 7. The learned Senior Counsel for the petitioner would submit that the very reference of the dispute, without considering the specific contention of the petitioner that the workmen were not employed by the petitioner at all, was improper and illegal. Relying on a decision of the Apex Court in **Shankar Chakravarti** v. **Britannia Biscuit Co. Ltd. and another** [(1979) 3 SCC 371], it is contended that the Labour Court has to decide the lis between the parties on the basis of the pleadings of the parties and the evidence adduced before it. Though the Labour Court is not bound by the provisions contained in the Evidence Act, it is undoubtedly performing a quasi judicial function and has to decide the dispute taking note of the rules of fair play justice, equity and good conscious. It is contended that in view of the specific pleading of the workmen that they had been engaged in the year 1986, the finding of the Tribunal on the basis of evidence allegedly adduced that the workmen had been in continuous service from 1983 onwards is completely perverse and is liable to be vacated. It is WP(C).No.677 OF 2006(E) -: 7 :- contended that the Tribunal has picked out sentences from the cross examination of the Management witness in isolation and had relied upon such statements to come to the conclusion that the workmen had been engaged directly by the Management. It is submitted that the evidence given by the very same witness in the examination in chief had been totally eschewed by the Labour Court and stray statements from the cross examination had been relied on. 8. Relying on a decision of the Apex Court in **Tata Iron and Steel Company Limited** v. **State of Jharkhand and others** [(2014) 1 SCC 536], it is contended that the reference itself was bad in law since it prejudged the issue of employment of the workers directly by the Management without considering the specific contention of the petitioner that the workmen were engaged by a contractor. It is contended that the question as to who was the employer should have been left open to be decided by the Labour Court. 9. Relying on a decision reported in **Municipal Committee, Tauru** v. **Harpal Singh and another** [1999 (1) LLJ 1028], it is contended that the evidence tendered should be based on the claim statement and an inconsistent stand made by the WP(C).No.677 OF 2006(E) -: 8 :- workmen could not have been relied on, even if evidence was let in, in the absence of any such claim in the claim statement. It is further contended that the payment of PF and ESI contributions are not conclusive of the status of employer and employee between the parties. A decision of the Madras High Court in **Sundarrajan and others** v. **The Management of Madras Aluminium Co. Ltd,** **Metur Dam and another** [2012 (4) LLN 418 (Mad.)] is relied on in support of the said contention. It is held by the High Court of Madras in the said decision as follows :- “............... When an allegation is made that a particular Employee is the Employee of the Contractor, it is for the Workmen to contend that the contract was only sham and nominal and they are in fact Employees of the Principal Employer. In the present case, except for contending that they were covered by ESI and PF Scheme under the Code Number obtained by the Principal Employer is to cover even the contract worker and that by itself will not create any relationship between Principal Employer and the Contract Workmen as master and servant.” Reliance is placed on the decisions of the Apex Court in **Municipal Council, Sujanpur** v. **Surinder Kumar** [2006 LLR 662], **General Managaer, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon** v. **Bharat Lal and another** [(2011) 1 SCC 635], **Rajasthan State Ganganagar S. Mills Ltd.** v. **State of Rajasthan and another** WP(C).No.677 OF 2006(E) -: 9 :- [2004-III-LLJ 832] and **Haryana State Electronics Dev. Corn.** v. **Mamni** [2006 LLR 667] in support of the contention that the burden to prove that the workmen had been employed directly by the Management was with the workmen themselves. It is contended that the Labour Court had proceeded on the basis that the contentions raised by the workmen had not been disproved by the Management. It is stated that there is no admission by the Management as recorded by the Labour Court in paragraph 14 of the award and that as such, the Labour Court ought to have found that the claim of the workmen was completely unsubstantiated. The learned Senior Counsel therefore contends that the award of the Labour Court is perverse and unreasonable and is also bad for the contradictory findings that it has rendered and is therefore completely unsustainable. 10. The learned counsel appearing for the respondents would, on the other hand, contend that the wording of the issue referred for adjudication makes it clear that the question as to who is the employer was specifically left open. Referring to Section 10(4) of the Industrial Disputes Act, it is contended that the reference in question is perfectly in tune with the statutory provisions. The question referred was “whether the claim of the WP(C).No.677 OF 2006(E) -: 10 :- workmen that they were illegally retrenched with effect from 9.6.1992 and that they are eligible for regularisation by the petitioner is justified.” It is stated that after considering the reference, the claim statement and the objection filed by the Management, the Labour Court framed the following issues for consideration :- - “1. Whether the workmen in this case were the workers of the Management or they were contract workers? 2. Whether the workmen were illegally retrenched with effect from 9.6.1992? and 3. Whether the workmen are eligible for regularisation?” It is submitted that the contention of the Management that the workmen were engaged by contractors entrusted by the Corporation had been specifically considered in detail by the Labour Court and the Labour Court had come to the conclusion, on the basis of the evidence adduced that the workmen were indeed engaged directly by the Corporation. It was also found that the workmen had been illegally retrenched. However, after holding that the workmen had been engaged by the Management and that they had been illegally retrenched, the Labour Court proceeded to direct reinstatement only on daily wages and that too, without back wages. It is contended by the learned counsel for the workmen that in view of the findings of the Labour Court, the relief granted WP(C).No.677 OF 2006(E) ## -: 11 :- was not proper in as much as the Management ought to have been directed to reinstate the workmen, who were illegally retrenched with back wages and directed consideration of their claim for regularisation. Relying on a decision of this Court in **Sreekumar K. v. Managing Director, KTDC Ltd. and another** [2019 (1) KHC 225], it is contended that a workman does not have to satisfy the Labour Court that he was a permanent employee. All that is required to support an award directing reinstatement is continuous service of 240 days in the preceding 12 months. It is further contended that the said aspect was not in dispute and therefore an award directing reinstatement was warranted. It is further submitted that the findings entered into by the Labour Court were well supported by evidence. 11. The learned counsel would also place reliance on Ext.R2, which is a copy of the testimony of the Management Witness MW1 in cross examination. It is contended that it was taking note of the admissions made by the Management Witness that the Labour Court had decided the issue in favour of the workmen. It is stated that Ext.W9 document produced by the workmen would show that the EPF had been paid. It was also contended that there was no serious dispute as to the continuous WP(C).No.677 OF 2006(E) -: 12 :- nature of the work done by the workmen. It is further contended that the contradiction with regard to the date of entry in the service is completely irrelevant since the workmen admittedly had continuous service of 6 years from 1986 onwards even going by the version of the Management Witness. 12. I have considered the contentions advanced. The issue referred to adjudication was whether the termination of the workmen was illegal and whether they were entitled to regularisation under the petitioner Management. However, on the submission in the claim statement by the workmen and on consideration of the objection preferred by the Management, the Labour Court had specifically raised an issue, whether the workmen were workers of the Management or of the contractor. The Labour Court then proceeded to consider the contention that the workmen were engaged by the contractor, who had been engaged for the work in question by the Management. After considering the pleadings and the evidence on record, the Labour Court came to the conclusion that the contention raised by the Management that they had appointed contractors for carrying out the work and that daily wage employees like the workmen in the instant case had been engaged by the contractors was not WP(C).No.677 OF 2006(E) -: 13 :- acceptable. Though the learned Senior Counsel for the Management would raise serious objections as against the manner of consideration of the said issue by the Labour Court, I am of the opinion that this Court would not be justified in re-examining the question, which has been decided by the Labour Court on the basis of pleadings and evidence placed on record before it. This Court has to remind itself that what is being exercised is not an appellate jurisdiction and is only an exercise of judicial review under Article 226 of the Constitution of India. I am therefore of the opinion that the finding of fact on the basis of pleadings and evidence recorded by the Labour Court is not liable to be interfered with by this Court. 13. However, the workmen in their initial claim as is found recorded in Ext.P3 failure report as also in their claim statement had raised contentions with regard to initial employment in the year 1986. However, the Labour Court relies on the evidence tendered by the Management more specifically on statements made during cross examination to support the contention apparently raised during the adjudication that the workmen had been directly appointed by the Management in the year 1983 on daily wages and that monthly salary was paid to them since 1986. WP(C).No.677 OF 2006(E) -: 14 :- I am of the opinion that this finding of the Labour Court was erroneous in as much as no such claim had been raised by the workmen either during the conciliation proceedings or in the claim statement submitted by them before the Labour Court. The Management, therefore, could not have rebutted such a claim which was never put to them as a part of the pleadings to which they were expected to submit their written explanations. 14. Taking note of the decisions of the Apex Court relied on by the learned counsel for the Management, I am of the opinion that the finding rendered in Ext.P6 award to the effect that the workmen had been directly engaged by the Management from 1983 onwards and that they had been paid monthly salary from 1986 is completely untenable and is unsupported by any pleadings. It is trite law that evidence is to be let in to support the pleadings and the reliance placed by the Labour Court on statements made by the Management Witness in cross examination to come to a conclusion which does not find a place in the pleadings is completely untenable. The said finding is therefore liable to be vacated. 15. In the facts and circumstances of the instant case, I am of the opinion that the further direction to the Management to WP(C).No.677 OF 2006(E) **==> picture [49 x 8] intentionally omitted <==** reinstate the petitioners in service on daily wages does not require any interference. 16. I notice that 17B wages had been paid to the petitioners from 6.1.2006 onwards pursuant to an interim order of this Court dated 21.6.2006 till the date when they attained the age of superannuation. In the above view of the matter, apart from the modification as directed above, as to the date when the petitioners were engaged by the Management, the award of the Labour Court is upheld. These writ petitions are ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/15.1.2020 WP(C).No.677 OF 2006(E) -: 16 :- ## **APPENDIX OF WP(C) 677/2006** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CONTRACT WAS AWARDED TO P.T.JACOB FOR THE PERIOD 1.6.88 TO 31.5.91, CONTRACT DATED 28.06.89.** - **EXHIBIT P2 TRUE COPY OF THE CONTRACT DATED 11.07.01 BETWEEN THE PETITIONER AND SRI.A.G.GEORGE.** - **EXHIBIT P3 TRUE COPY OF THE FAILURE REPORT DATED 30.09.94 SENT BY THE CONCILIATION OFFICER.** - **EXHIBIT P4 TRUE COPY OF THE JOINT CLAIM STATEMENT FILED BY THE RESPONDENTS 1 TO 3 BEFORE THE 4TH RESPONDENT DATED 19.05.97 IN ID 3/97.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED NIL MARCH 98 IN ID 3/97.** - **EXHIBIT P6 TRUE COPY OF THE AWARD PASSED BY THE 4TH RESPONDENT DATED 29.03.2005 IN ID.3/97.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 23.01.2006 ISSUED BY THE ASST.LABOUR COMMISSIONER (C) ERNAKULAM.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 : TRUE COPY OF REPLY STATEMENT FILED BY THE RESPONDENT IN I.D.3/97.** **EXHIBIT R2 : TRUE COPY OF DEPOSITION GIVEN BY MW1 IN I.D.3/97.** **EXHIBIT R3 : TRUE COPY OF MEMORANDUM OF SETTLEMENT.** **EXHIBIT R4 : TRUE COPY OF MEMORANDUM OF UNDERSTANDING.** **EXHIBIT R5 : TRUE COPY OF THE LETTER DATED 29.1.2016 ISSUED BY THE HPCL TO 1ST RESPONDENT IN WP(C).** ## **APPENDIX OF WP(C) 10644/2006** **EXHIBIT P1 : TRUE COPY OF THE CLAIM STATEMENT.** WP(C).No.677 OF 2006(E) -: 17 :- **EXHIBIT P2 : TRUE COPY OF THE REPLY STATEMENT.** **EXHIBIT P3 : TRUE COPY OF THE DEPOSITION GIVEN BY MW1.** **EXHIBIT P4 : CERTIFIED COPY OF AWARD IN I.D.3 OF 97(c).** **EXHIBIT P5 : TRUE COPY REPLY UNDER RI ACT.** **EXHIBIT P6 : TRUE COPY REPLY UNDER RI ACT.** **EXHIBIT P7 : TRUE COPY OF STATEMENT.** **EXHIBIT P8 : TRUE COPY OF QUESTION U/RI ACT.** **EXHIBIT P9 : TRUE COPY OF REPLY U/RI ACT.** **EXHIBIT P10 : TRUE COPY OF JUDGMENT IN SLP No.20182-20183/2011 OF APEX COURT.** //TRUE COPY// P.A. TO JUDGE