Delhi District Court
Rajeev Kumar vs M/S Bses Yamuna Power Ltd on 17 May, 2025
IN THE COURT OF MS RITU SINGH, DISTRICT JUDGE &
ADDITIONAL SESSIONS JUDGE PRESIDING OFFICER
LABOUR COURT - IV, ROUSE AVENUE COURTS
COMPLEX, NEW DELHI
LIR No. 532/2023
DLCT DLCT13-2082-2023
Sh. Rajeev Kumar S/o Sh. Hem Singh
R/o H. No. P-49, Gali No. 12, Lok Vihar,
Shiv Vihar, Karawal Nagar, North East,
Delhi 110094
.........Workman
vs.
M/s BSES Yamuna Power Ltd,
Through its CEO, Shakti Rajeev Kumar Building,
Karkardooma Delhi 110092
..........Management
Date of Institution : 06.05.2023
Date of Argument : 14.05.2025
Date of Award : 17.05.2025
Decision : Claim of the workman
dismissed.
AWARD
01. Vide this Award, this Court shall decide the Industrial
Dispute which was referred by Joint Labour Commissioner,
District Shahadra/North East, Govt of NCT of Delhi,
Vishwakarma Nagar, Jhilmil Colony, Shahadra Delhi 110095 on
a complaint filed by the workman against the Management, vide
reference no. F.24(25)/ID/54/SHD/22/Lab.Ref/E/2023/1051
dated 05.04.2023 u/s 10(1)(c) and 12 (5) of The Industrial
Disputes Act, 1947, wherein the following reference was to be
answered :-
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"Whether there existed employer-employee relationship between
workman Sh. Rajeev Kumar S/o Sh. Hem Singh and the
management, and, if so, whether his services were terminated
illegally and /or unjustifiably by the management and if so, to
what relief is she entitled and what directions are necessary in the
respect?"
THE CLAIM OF THE WORKMAN
02. The workman Sh. Rajeev Kumar has asserted in his
statement of claim that he was appointed to the post of
Videographer on 01.06.13 in the establishment of the
management/BSES Yamuna Power Ltd at a gross salary of Rs.
8000/- and has been performing his duty sincerely, honestly,
diligently without any complaint to his superiors since February
2013. He has further claimed in his statement of claim that he
was working as 'Videographer' At ENF-1 (GTR) Yamuna Vihar,
under the control and management/BSES Yamuna Power Ltd.
03. The workman has further claimed in his statement of claim
that on 30.11.2020, without any prior notice, he was terminated
from his services due to some internal vigilance enquiry against
him of which he was never made aware neither he was called for
any explanation and his termination was against the laws of
natural justice without giving him any proper opportunity of
hearing to him and no internal vigilance enquiry was ever
conducted. He has further claimed in his statement of claim that
management had disquished the employment of workman to be
in contractual employment with some other
management/contractor, while workman had been directly
working under the supervision of management and his duty was
of a permanent nature. He has further claimed in his statement of
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claim that he used to take direct instructions, directions from
management and was under supervision of the management and
right to regulate his employment was also with management. He
has further alleged in his statement of claim that the contract
between principal employer and the contractor was sham,
nominal and merely a camouflage to deny employment benefits
to him and that there was in fact a direct employment between
him and management, which could be ascertained by checking
that who had direction and control over him and in the present
case the workman being the employee of the management, the
ultimate supervision and control lied with it as management and
the primary control of the workman was also with the
management.
04. The workman has further alleged in his statement of claim
that on 01.06.2013 he was appointed as Videographer on
temporary basis with the management by showing his
employment through M/s Safeguard Human Resourcing Private
Limited. He has further alleged that he had been shown to be
under contractual employment with different contractors but has
always been working under direct employment of management
and the contractors kept on changing only to show that he was
being paid by the contractor under the contractual employment.
He has further alleged that the contract between contractor and
the management was sham, nominal and merely a camouflage,
just to deny employment benefits to him and that there was in
fact a direct employment by the management of workman by
applying tests that primary control over workman was always
with management. He has further alleged that the primary control
over him, was always with management and the management had
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illegally shown the workman to be working with contractors
namely (a) M/s Safeguard Human Resource Pvt Ltd (2013 &
2014), (b) Arora Photo Studios from 2015 to 2020. It is alleged
by workman in his statement of claim that identity card was
issued to him through management only and that he was under
the direct control of management, carrying out all the duties as
directed by management. It is further alleged by workman in his
statement of claim that the contract was camouflaged to illegally
protect the management / principal employer from its liabilities
against him. It is alleged by workman in his statement of claim
that he was illegally terminated from his services without any
prior notice or any opportunity of hearing and he was only
informed by his the then contractor M/s Arora Photo Studios vide
letter dated 09.12.2020 that there was vigilance enquiry vide
reference No. VIG/BYPL/2019-20/54 was pending against him
and due to which his service have been terminated on the
instructions of the management received through email dated
26.11.2020. It is alleged by workman in his statement of claim
that he was never called for any enquiry proceedings by the
management nor he was informed reason for termination of
sudden termination of his services in the middle of a pandemic
and now jobless without any financial support. It is alleged by
workman in his statement of claim that he had worked for more
than 7 years with the management and to escape liablity for
providing all the employment benefits, his services were
terminated in surreptitious manner. It is stated that after his
termination, the workman has been jobless despite several
efforts. It is stated that management has deliberately and
intentionally and without complying with the provisions of law,
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unlawfully terminated him from service and it has been prayed
that action of the management be declared as illegal, void,
uncalled for against all norms of administrative and labour law
for reinstatement of the workman, since he is jobless from the
date of his termination and for back wages and consequent
benefits.
VERSION OF MANAGEMENTS IN ITS REPLY
05. Notice of the statement of claim of the workman
was issued to management and pursuant to the services of the
notice, the management had appeared before the Court and filed
its written statement. In written statement/ statement of defense
of management (M/s BSES Yamuna Power Pvt Ltd.) that there
was no employer-employee relationship between the workman
and the management as alleged or otherwise and workman was
an employee of independent contractor M/s Arora Photo Studio
with whom the management had a valid service agreement and
M/s Arora Photo Studio had been providing services to the
management in terms of the above said agreement through its
employees including the workman, who was deputed at the site
of the Management and the contractor engaged by the
Management has valid licenses as per the Contract Labour
(Regulation & Abolition) Act, 1970 and the workman had been
working under the direct control and supervision of his employer
M/s Arora Photo Studio who was fully and solely responsible for
allocation of work as well as complying with all statutory
obligations under the applicable labour laws like Provident Fund
and Employees State Insurance etc. The provident Fund of the
workman was being deposited by M/s Arora Photo Studio the the
workman' employer M/s Arora Photo Studio had provided the PF
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Challan. It is alleged that claim of workman is liable to be
dismissed. It is alleged by management in its written statement
that workman had not been employed by the management and
there was no employer-employee relationship between the
management and the workman and the workman was not the
employee of the management and neither he has ever been paid
wages/salary or any other statutory benefits by BSES Yamuna
Power Ltd as workman was working under the direct supervision
and control of his employer M/s Arora Photo Studio. It is stated
by management in its written statement that workman was
deputed by M/s Arora Photo Studio with which management has
valid service agreement but workman has failed to implead his
employer M/s Arora Photo Studio as party to the present claim
and present claim of the workman is liable to be dismissed on
account of mis-joinder of BSES Yamuna Power Ltd and non-
joinder of M/s Arora Photo Studio. The statement of claim of the
workman is liable to be dismissed as claim wholly
misconceived, vexatious, misleading, misrepresented,
unsustainable, false and frivolous and nothing but a flagrant
abuse of the process of law. Management has denied all the
remaining allegations of the workman.
06. It is alleged by management in its reply that on the
basis of a complaint filed by one of the consumer Ms. Manju
Rani for illegal extortion of Rs. 20,000-/ under the false threat
that she would be made liable for tampering of the meter, the
vigilance department of the Management conducted a detailed
investigation against the team involved in the case, consisting of
BYPL employee as well as the employees of M/s Arora Photo
Studio and other contractors and the the Investigating Officer,
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after completing the vigilance enquiry, had submitted his
investigation report dated 23.03.2020 wherein the team
consisting of BYPL employee as well as the employees of M/s
Arora Photo Studio and other contractors were found to have
indulged in the said omissions/commission as complained by the
consumer and that since the management is engaged in providing
the public utilities services to its customers, such type of highly
improper, illegal, dishonest act could not be condoned and
therefore, the management had informed the employer of the
workman i.e. M/s Arora Photo Studio to disengage him from
BYPL and to take the necessary action against him. Management
has claimed that the present claim of the workman is not
maintainable against the management, which has only acted as
principal employer and it is alleged that the termination of
services has been effected by M/s Arora Photo Studio.
Management has denied that the workman was not aware of the
inquiry conducted against him and that he was not called for any
explanation and that no claim with respect to alleged termination
by his employer M/s Arora Photo Studio could be raised against
the management.
ISSUES
07. Vide order dated 17.10.2023, the following issues
were framed in view of pleadings of the parties and the
reference:-
(1) Whether there existed a relationship of employer
and employee between the workman and
management no.1 ? OPW
(ii) Whether the application under Section 33-C(2) of
the I.D. Act is maintainable and to what amount, if
any, the claimant is entitled? OPW
(iii) Relief.
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EVIDENCE OF WORKMAN
08. In order to prove the case, the workman appeared as
witness WW1 and filed his evidence affidavit Ex. WW-1/A
wherein he has reiterated the contents of statement of claim on
solemn affirmation. Besides this, he had also placed on record
the following documents:-
I) Ex. WW1/1 are copies of identity card issued by management.
ii) Mark A is copy of identity card issued by the management.
iii) Ex. WW1/2 is copy of letter dated 01.06.2013 issued by the
management regarding temporary appointment of workman (OSR)
iv) Mark WW1/3 are copies of letter dated 09.12.2020 issued by the
management.
v) Ex. WW1/4 is the copy of letter dated 03.12.2020 written by workman
to management (OSR).
09. Workman was cross-examined by Ld. AR for the
management and as per submissions of AR for the workman,
workman evidence was closed vide order dated 16.01.2024.
10. Thereafter, matter was listed for management
evidence.
EVIDENCE OF MANAGEMENT
11. The management has examined MW1 Sh. Manoj
Kumar Sharma S/o Sh. Hukum Chand, who filed his affidavit by
way of evidence as Ex.MW1/A, reiterating the factual contents of
the written statement of management on solemn affirmation.
MW1 also relied on the following documents:-
(I) Ex/ MW1/A original authority letter dated 09.02.2024
(ii) Ex. MW1/A1 is copy of GPA dated 01.09.2022 (OSR)
(iii) Ex. Ex. MW1/B is copy of work order dated 15.03.2019 along with
contract change order and
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(iv) Ex. MW1/C is computer generated copy of PF Challan, PF payment and
confirmation receipt (Colly 3 pages). This witness was cross-examined by
AR for the workman.
12. Management has examined MW-2 Ms. Renu Gupta,
Senior Assistant, EPFO, RO Delhi (Central), who had appeared
before the Court along with summoned record. This witness was
also cross-examined by AR for the workman.
13. Management has also examined MW-3 (wrongly
mentioned as MW2) Sh. Umesh Kumar Section Supervisor
posted at EPO, Regional Office, Delhi and who appeared before
the Court and brought the summoned record. Opportunity to
cross-examine this witness was given to the workman, who has
availed the same as nil.
14. Thereafter, matter was listed for final arguments.
Written submissions and judgment were filed on behalf of
workman and on behalf of the management. Same has been
perused. This Court has heard the detailed final arguments
addressed by AR for the workman and AR of the management
and thoroughly perused the record and documents on record.
Issue-wise findings of this Court are under:-
ISSUE NO.1
Whether there existed a relationship of employer and employee
between the workman and management no.1 ? OPW
15. The onus to prove this issue was on the workman.
16. The claim of the workman is that he was appointed
in management as Videographer since 01.06.2013, under control
and supervision of management, though he also alleges that
management had disguised his employment in management as
contractual employment with some other contractor and
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workman has asserted that he was directly working under
supervision of management and used to take direct instructions
and directions from management and was working under
supervision of management and that management had right to
regulate his employment. The workman has challenged the
contract between management and concerned contractor as sham,
nominal and camouflage though contractor has not been made a
party in the present case. The workman has asserted that he was
under direct employment of management which can be
ascertained from the fact as to who gave directions and had
control over him. Workman has stated that primary control as
well as supervision over him was with management and he has
conceded in his statement of claim that from 01.06.2013 to
30.11.2020, he was working in the management through different
contractors as mentioned in his claim statement.
17. On the other hand, the management has denied
employer-employee relationship with the workman. Instead,
management has claimed that workman was never employed by
management and that workman was employee of independent
contractor M/s Arora Photo Studio with whom management had
service agreement and had been providing services to
management through its employees, including present workman
deputed at site of management. The management has alleged that
M/s Arora Photo Studio had direct control and supervision over
workman and it was fully responsible for allocation of work as
well as compliance of statutory obligations under different
Statutory Acts and toward provident fund of contributions of
workman which was also deposited by M/s Arora Photo Studio.
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The management has asserted that monthly wages of workman
was paid by M/s Arora Photo Studio, during relevant period.
18. The workman has reiterated his claim in his
evidence affidavit Ex. WW1/A and to substantiate his claim, he
has relied on several documents, including copy of his identity
card Ex. WW1/1 and Mark-A, letter of contract Ex. WW1/2
(Colly) and termination letter Ex. WW1/3 and MarkWW1/3. The
workman has admitted in his cross-examination that he was
issued appointment letter Ex. WW1/2 by contractor concerned.
He has admitted further in his cross-examination that on his
identity card, it has been mentioned 'Safeguard Human
Resources Pvt Ltd on contractual duty of BSES' and this fact is
corroborated by Mark-A. He has further admitted that his
termination letter was issued by his then contractor M/s Arora
Photo Studio. He has further categorically admitted that it was
contractor M/s Safeguard Resource Pvt Ltd who had deputed him
to work at site of BSES. The workman has claimed that he was
paid salary in his bank account by management, but has not
substantiated his claim by filing his bank account statement. On
other hand, management has proved through documentary
evidence Ex. MW1/C (Colly) and Ex. MW2/4 that deduction and
contribution towards statutory benefits like PF of workman was
deposited by his contractor M/s Arora Photo Studio. This fact
has been also corroborated by summoned witnesses as MW2 and
MW3 and documentary evidence filed by the management.
19. In the case of Balwant Rai Saluja Vs. AIR India Ltd.
(2014) 9 SCC 407, the Hon'ble Supreme Court of India , has laid
down following tests to decide employer-employee relationship:
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"65. Thus, it can be concluded that the relevant factors to
be taken into consideration to establish an employer-
employee relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether
there exists complete control and supervision."
20. Further, the two tests to decide if contract labourers are
direct employees of principal employer, were laid down in
Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635
and these are as under :
"Two of the well-recognised tests to find out whether the
contract labourers are the direct employees of the principal
employer are: (i) whether the principal employer pays the
salary instead of the contractor; and (ii) whether the
principal employer controls and supervises the work of the
employee. In this case, the Industrial Court answered both
questions in the affirmative and as a consequence held that
the first respondent is a direct employee of the appellant."
21. The workman has deposed in his cross-examination
that it was BSES/management who used to pay him salary and
that his salary was deposited in his bank account. However,
workman has failed to file his bank account statement for
reasons best known to him even though, his bank account
statement is a relevant and material evidence and since this
documentary evidence was well in his possession and he had
deliberately withheld it, without any reasonable justification,
therefore, not only his claim has remained unsubstantiated, but it
also furnishes valid ground for drawing adverse inference against
the workman, on this point.
22. On other hand, management has proved through Ex.
MW1/B ( Colly) and Ex. MW1/C (Colly) and MW1/D (Colly)
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that statutory deduction towards PF contribution of workman was
deducted and deposited by contractor M/s Arora Photo Studio
and testimony of management witness MW1 on this aspect has
remained unrebutted and uncontroverted. MW2 Sh. Umesh
Kumar, Section Supervisor, Employee Provident Fund Office has
categorically deposed that from 01.07.2014 till December 2020,
the employer of workman was M/s Arora Photo Studio, as per
Member of Ledger card of workman i.e. Ex. MW2/A (colly).
23. Now as regards the second test of “Control &
Supervision”, it is relevant to note that expression “Control &
Supervision” was explained by Hon’ble Supreme Court of India
in International Airport Authority of India Vs. International AIR
Cargo worker’s Union (2009) 13 SCC 374 as under :
“38. … if the contract is for supply of labour, necessarily,
the labour supplied by the contractor will work under the
directions, supervision and control of the principal
employer but that would not make the worker a direct
employee of the principal employer, if the salary is paid
by a contractor, if the right to regulate the employment is
with the contractor, and the ultimate supervision and
control lies with the contractor.
39. The principal employer only controls and directs the
work to be done by a contract labour, when such labour is
assigned/allotted/sent to him. But it is the contractor as
employer., who chooses whether the worker is to be
assigned/allotted to 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.”
24. In order to assess whether the management had any
‘supervision and control’ over workman, it is relevant to note that
workman has admitted in his cross-examination before Court that
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his appointment letter Ex. WW1/2 was issued by contractor M/s
Safeguard Human Resources Pvt Ltd and this fact is also
corroborated by letter of appointment Ex. WW1/2. Workman has
further admitted in his cross-examination that he was deputed by
M/s Safeguard Human Resources Pvt Ltd to work at site of
BSES and though, he had claimed in his cross-examination that
management had issued his appointment letter, but no such
appointment letter has been placed on record by workman.
Workman has also categorically admitted in his cross-
examination that his termination letter Ex. WW1/3, was also
issued by contractor M/s Arora Photo Studio. Thus, evidently,
the appointment letter Ex. WW1/2 as well as termination letter
Ex. WW1/3 of workman was issued to him by contractors and
not by management. No document at all has been produced by
workman to establish supervision or direction of management
issued to him. The Workman has further failed to produce any
documentary evidence or to examine any other witness to
substantiate his claim that management used to give direct
instructions or directions to him or used to regulate and supervise
his duty in management.
25. Now perusal of Mark-A copy of identity card of
workman also clearly shows that it was issued to him by M/s
Safeguard Human Resources Pvt Ltd and it was specifically
mentioned on said identity card that it was issued for ‘contractual
duty’ of BSES/management, and therefore, Mark-A is not of
much assistance to workman to establish his direct employment
under management.
26. From oral and documentary evidence adduced by
both the parties, it has been proved that ‘economic control’ over
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workman was exercised by the concerned contractor as it has
been proved that statutory contributions on behalf of workman
towards his PF was deposited by concerned contractor and
further, workman has miserably failed to prove that management
had any control or supervision over him, much less primary
control as well as to show that management used to regulate or
supervise his services and thus workman failed to show that
ultimate ‘control and supervision’ was with management.
27. One of the arguments advanced by Ld. AR for the
workman to show employer-employee relationship of the
workman with management is that contract/agreement between
management and the concerned contractor M/s Arora Photo
Studio (not made party in present case) was sham, bogus and a
camouflage and that the workman herein should be therefore,
considered direct employee of management and to buttress his
claim, Ld. AR for workman has relied on judgments of
International Airport Authority of India vs International Air
Cargo Worker‘s Union (2009) 13 SCC 347; Hussainbhai Calicut
vs alath Factory Thozhilali Union, Calicut AIR 1978 SC 1410;
Ashok Hotel vs workmen, 2013 SCC Online DEL 692; and
Workman vs State of Tamil Nadu (2004) 3 Supreme Court Cases
514, in his written submission. During the course clarifications,
AR for the workman has further relied on judgment of President
Cement Corporation of India Workers Union vs Presiding
Officer, Labour Court 2000 SCC Online KAR 712 (para 15) and
Hochtief Gammon vs Industrial Tribunal, Bhubaneshwar, Orissa
and Others AIR 964 SC 1746 (para10), in support of his claim
that jurisdiction of this Court may take within its sweep matters
incidental to the questions referred to this Court by way of the
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present reference and therefore, where certain points of dispute
have been referred to the Industrial Tribunal for adjudication, it
may, while dealing with the said points deal with matters
incidental thereto, including issue of ‘sham and bogus
contractor’.
28. Ld. AR for workman has argued that contract
between management and contractor was sham and bogus for
three reasons i.e. firstly because management had engaged
contract labour for work which was of perennial nature, secondly
because workman continued to work in management since 2013
to 2021, while the contractors kept changing during this period
and lastly, on basis of allegations that direct ‘control and
supervision’ over the workman was exercised by management as
it had power to conduct disciplinary enquiry against the
workman.
29. Now, Ld. AR for management has rebutted the
arguments of Ld. AR of workman on abovesaid point on the
grounds that management had not terminated the workman and
management had only conducted an ‘internal inquiry’ through its
Vigilance Department on the complaint received from one of its
consumer and that it was contractor M/s Arora Photo Studieo
who had terminated the services of workman on being told by
management to disengage him from site of management and to
substantiate its claim, the management has relied on Mark
WW1/3 to show that contractor M/s Arora Photo Studio had
terminated the services of workman as it had no other vacancy to
which workman could be deputed. AR of the management has
further argued that there was no control of management over
workman and that there is no legal obligation on part of
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management to engage permanent employees for work of
perennial nature, as management is private entity and has
discretion to employ workers, as per its requirement.
30. The principles and guidelines for adjudicating the
dispute regarding ‘sham and nominal contract between principal
employer and contractor’ were discussed by Hon’ble Supreme
Court of India in International Airport Authority of India vs
International Air Cargo Worker‘s Union (2009) 13 SCC 347,
which are as follows :-
“36. But where there is no abolition of contract labour
under section 10 of CLRA Act, but the contract labour
contend that the contract between principal employer and
contractor is sham and nominal, the remedy is purely under
the ID Act.
37. The principles in Gujarat Electricity Board continue to
govern the issue. The remedy of the workmen is to
approach the industrial adjudicator for an adjudication of
their dispute that they are the direct employees of the
principle employer and the agreement is sham, nominal and
merely a camouflage, even when there is no order
under section 10(1) of CLRA Act. The industrial
adjudicator can grant the relief sought if it finds that
contract between principal employer and the contractor is
sham, nominal and merely a camouflage to deny
employment benefits to the employer and that there is in
fact a direct employment, by applying tests like: 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 the work should be done, in
short who has direction and control over the employee. But
where there is no notification under section 10 of the
CLRA Act and where it is not proved in the industrial
adjudication that the contract was 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.
38. The tests that are applied to find out whether a person is
an employee or an independent contractor may not
automatically apply in finding out whether the contract
labour agreement is a sham, nominal and is a mere
camouflage. For example, if the contract is for supply of
labour, necessarily, the labour supplied by the contractor
will work under the directions, supervision and control of
the principal employer but that would not make the workerLIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 17 /24
a direct employee of the principal employer, if the salary is
paid by contractor, if the right to regulate employment is
with the contractor, and the ultimate supervision and
control lies with the contractor.
39. The principal employer only controls and directs the
work to be done by a contract labour, when such labour is
assigned/allotted/sent to him. But it is the contractor as
employer, who chooses whether the worker is to be
assigned/allotted to 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.”
31. Applying the tests and principles laid down in
aforesaid judicial precedent to facts of the present case, it is
relevant to note that ‘economic control’ over workman was with
concerned contractor as it was contractor who used to make
statutory contributions and depositions towards PF of workman.
Even as regards second test of ‘control and supervision’,
workman has failed to bring any document to show that he
received any direct instructions or directions from management
or to show that he was told by management how to perform his
duty. The averments of workman that the ‘control and
supervision’ through management in evident from fact that
management had power to hold disciplinary inquiry against him,
seems doubtful, as on one hand, workman had denied in his
cross-examination that any vigilance enquiry was conducted
against him by management on basis of complaint of consumer
of BSES while admitting in para 4 of his evidence affidavit Ex.
WW1/A, that said inquiry was only ‘some internal vigilance
inquiry of the management’ which he was never aware of nor he
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 18 /24
was called for any explanation, whereas on other hand, in same
breath he has admitted in his cross-examination that a vigilance
inquiry was initiated against him in January 2020 and he was
asked to give written response to allegations against him. Thus,
from testimony of workman, it appears doubtful whether any
internal vigilance inquiry was conducted against workman or he
was completely unaware of it and whether workman was served
with any notice of such inquiry. Thus, in absence of any cogent
and reliable evidence to prove that any inquiry by management
was conducted against workman, there is no valid justification to
hold that management had any disciplinary control over
workman, especially in light of admitted facts that termination
letter Ex. WW1/3 was issued to workman by concerned
contractor and not by management.
32. Be that as it may even otherwise, the reference
received by this Court in the present case is limited to
adjudication of questions as to whether there existed any
relationship of employer-employee between management and the
workman and whether the services of the workman have been
illegally and/or unjustifiably terminated by the management and
to what relief is workman entitled. There is no reference received
by this Court in respect of any dispute as to whether the contract
between the management and contractor concerned was sham
and bogus and whether the workman should be considered to be
under direct employment of management while holding various
contracts entered into between management and its contractor as
sham and bogus. Reliance in this regard is placed on judgment of
Management of Ashok Hotel (India) vs Their workmen & Anr
LPA 199/2023 and CMAPPL 19533/2022 (decided on
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 19 /24
12.11.2024 by Hon’ble High Court of Delhi) wherein it was held
that:-
“In situations where workmen allege that the contractor
had been deliberately interposed by the principal employer
to avoid statutory liabilities and obligations or where it is
asserted that the positioning of the contractor is merely a
ruse and a camouflage, the same would have be examined
by the industrial adjudicator on a consideration of the facts
which obtain and the evidence which may be led by parties.
That adjudication would thus be concerned with examining
those allegations on merits and on the strength of the
evidence that may be laid by parties.
However, absent a reference being specifically made in that
respect, it would be wholly impermissible for the industrial
adjudicator to venture down that path and accord relief
based on its perception of the nature of the contractual
engagement. Regard must also be had to the fact that a
finding on this score can also not be countenanced as being
“incidental” to the reference which was made. The dispute
which was referred for the consideration of the Tribunal
pertained to the asserted right of regularization and the pay
liable to be paid to the respondent workmen. The question
of their contractual engagement can thus neither be said to
be connected or concomitant to the principal dispute which
formed the subject matter of the reference
33. Reliance is also placed on the judgment of of
Hon’ble High Court of Delhi in Chhathoo Lal vs Management of
Gormal Hair Ltd 2006 DHC 6135, wherein it is held that:-
“In the present case the workman had not raised any
contention that the contract entered into between the
contractor and the management was a sham. In fact the
contention of the workman was that he was an employee of
the respondent. The Labour Court could not have gone into
the question whether the contract was sham or not because
no such reference was made to the Labour Court. The
reference made to the Labour Court was that whether the
services of the petitioner were illegally terminated or not
and the contention of the petitioner was that he was a direct
employee of the respondent. I consider that the petitioner
should have initially raised a proper dispute. Не should
have come up with clean hands and submitted that he was
an employee of the contractor and the contract should be
declared as sham and camouflage and he should be
considered as an employee of the principal employer. HeLIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 20 /24
did not disclose the true facts and taking a false plea stood
in the way of referring the proper dispute to the Labour
Court. It is settled law that the Labour Court is a creation of
the reference and the Labour Court cannot go beyond the
terms of reference except that the questions incidental to
the dispute and those, who go to the root to the jurisdiction
of Labour Court can be decided by the Labour Court while
deciding a reference.”
34. Similarly, in A.P.SRTC and Ors. v. G.Srinivas Reddy
and Ors AIR 2006 SCW 1108., Hon’ble Supreme Court held that
if the respondents wanted the relief of absorption they will have
to approach the Industrial Court and establish that the Contract
Labour System was only a ruse/camouflage to avoid labour law
benefits to them and where the workmen do not approach the
Court with correct reference and true facts, workmen cannot later
on turn around and say that now they should be considered as
workmen through the contractor and they should be deemed to be
the employees of the management because contract was sham
and camouflage.
35. Ld. AR for the workman has relied on judgments of
President Cement Corporation of India Workers Union vs
Presiding Officer, Labour Court 2000 SCC Online KAR 712
(para 15) and Hochtief Gammon vs Industrial Tribunal,
Bhubaneshwar, Orissa and Others AIR 964 SC 1746 (para10), in
support of his claim, however it is worth pointing out that the
judgment of President Cement Corporation of India Workers
Union vs Presiding Officer, Labour Court (Supra), was on the
issue of impleadment of concerned contractor for the purpose of
adjudication of industrial dispute as per the reference and even in
the aforesaid case, it has been clarified by Hon’ble Karnataka
High Court that the Hon’ble Supreme Court of India has held in
Hochtief Gammon vs Industrial Tribunal, Bhubaneshwar, Orissa
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 21 /24
and Others (Supra) that the ‘Tribunal has implied powers to
implead certain parties if it is necessary for a proper adjudication
of the dispute. However, such power cannot be exercised by the
Tribunal to enlarge the scope of the reference .’ In Hochtief Gammon
vs Industrial Tribunal, Bhubaneshwar, Orissa and Others (Supra),
it has been held that:-
‘In dealing with this question, it is necessary to bear in
mind one essential fact, and that is that the Industrial
Tribunal is a Tribunal of limited jurisdiction. Its jurisdiction
is to try an industrial dispute referred to it for its
adjudication by the appropriate Government by an order of
reference passed under section 10. It is not open to the
Tribunal to travel materially beyond the terms of reference,
for it is well-settled that the terms of reference determine
the scope of its power and jurisdiction from case to
case. Section 10 itself has been subsequently amended
from time to time. Act 18 of 1952 made substantial
amendments in s. 10. One of these amendments was that s.
10(1)(d) now empowers the appropriate Government to
refer the dispute or any matter appearing to be connected
with, or relevant to, the dispute, whether it relates to any
matter specified in the Second Schedule, or the Third
Schedule, to a Tribunal for adjudication. In other words.
under s. 10(1)(d), the appropriate Government can refer to
the Industrial Tribunal not only a specific industrial
dispute, but can also refer along with it matters appearing
to be connected with, or relevant to, the said dispute. In
that sense. the power of the appropriate Government has
been enlarged in regard to the reference of industrial
disputes to the Tribunal.’
36. Therefore, in terms of the observation of Hon’ble
Supreme Court of India in Hochtief Gammon vs Industrial
Tribunal, Bhubaneshwar, Orissa and Others (Supra), this Court
cannot enlarge the scope of the terms of reference beyond the
questions referred for adjudication to this Court u/s 10 ID Act, by the
appropriate Government and the question regarding ‘sham and bogus
contract between the management and the concerned contractor’
cannot be considered as incidental to the questions referred to this
Court for adjudication, by way of this reference.
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 22 /24
37. Thus, in light of above cited judicial precedents, in
the absence of any reference on the aspect of the alleged contract
between management and concerned contractor being sham and
bogus, this Court cannot consider and adjudicate upon aforesaid
question.
38. In light of aforesaid observations and discussion,
this Court is of considered opinion that workman has failed to
establish employer-employee relationship with management.
Accordingly, issue no. 1 is decided against the workman and in
favour of management.
Issue No. 2
Whether the application under Section 33-C(2) of the I.D. Act is
maintainable and to what amount, if any, the claimant is
entitled? OPW
39. The onus to prove this issue was on the workman.
40. Since, this Court has returned finding in issue no.1
herein above that workman has failed to establish employer-
employee relationship with the management and therefore, in
absence of any proof of employement of the workman with the
management, no question of termination of the workman by the
management arises.
41. Accordingly, issue no. 2 is decided against the
workman and in favour of the management.
Relief
42. Consequent upon findings of this Court in Issue no.
1 and Issue no. 2, this Court is of opinion that workman is not
entitled to any relief in the present case.
43. Issue no. 3 is decided, accordingly.
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 23 /24
44. Accordingly, the present statement of claim filed by
the workman is dismissed. Reference is answered accordingly.
45. Signed copy of the Award be sent to the Labour
Commissioner, Government of NCT of Delhi for publication, as
per rules.
46. Judicial file be consigned to Record Room after
compliance of necessary legal formalities. The award be also
uploaded on server.
Digitally
File be consigned to Record Room. RITU
signed by
RITU SINGH
Date:
SINGH 2025.05.17
16:50:01
+0530
Announced in the open Court (RITU SINGH)
on 17th May 2025 District Judge,
POLC-IV/RADC,
New Delhi/17.05.2025
LIR No. 532/2023 Rajeev Kumar vs M/s BSES Yamuna Power Ltd. Page No. 24 /24