1. The writ petition is directed against the award dated 30.11.1990 passed by Labour Court (V) U.P., Kanpur in Adjudication Case No. 170 of 1986 holding termination of Sri Jodha Ram from 1.8.1884 to be illegal and unjust. It has further directed the petitioners to reemploy Sri Jodha Ram forthwith and pay entire arrears of salary and other benefits of service within one month besides cost of Rs. 150/-.
2. The respondent no. 3, Sri Jodha Ram, raised an industrial dispute that he was illegally terminated by the petitioners. The said dispute was referred for adjudication by respondent no. 2 in exercise of power under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'U.P.I.D. Act'). The following reference was made:-
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3. The respondent no. 2 filed his written statement alleging that he was continuously working in the petitioner's establishment since 1975 in various Departments. He discharged the duty of helper.
4. In violation of the relevant provisions and without following the prescribed procedure, he has been terminated illegally on 1.8.1984. The petitioners filed a written statement raising a preliminary objection that the workman Jodha Ram was never employed by petitioner Establishment nor was terminated. There existed no relationship of master and employee between them. The respondent no. 3 infact was engaged by one M/s Super Builders (civil contractor) office at 113/69 Swaroop Nagar, Kanpur (hereinafter referred to as the 'Contractor') for some job of civil nature. The said contractor was not party in the aforesaid adjudication. The petitioner-company engaged in the manufacture and sale of chemical fertilizers had employed its own workers by issuing appointment letters, identity cards, wage slips etc. The petitioner company in addition to its labour force also engaged certain job contractors for specified jobs of intermittent nature from time to time. For some time a contract of civil nature was awarded to the contractor M/s Super Builders and respondent no. 3 having been engaged by the said contractor cannot claim any relief against the petitioner as there is no relationship of employer and employee between them.
5. In the rejoinder affidavit filed by petitioner in reply to the written statement of respondent no. 3 before Labour Court, again the facts denying relationship, i.e., of employer and employee with respondent no. 3 were stated in detail. It is also said that since the respondent no. 3 was employed by the contractor, petitioner-company has no particulars and other details and in absence of contractor, being not a party impleaded, the workman must furnish better particulars about his employment.
6. The respondent no. 3 also filed rejoinder affidavit in reply to the written statement of petitioner stating that the documents relating to contract of civil nature awarded to contractor are forged and fictitious. No contract was awarded. He was appointed by the petitioner and also terminated by it.
7. The petitioner in support of his claim filed photo copy of wage attendance register of the contractor for the period of January 1980 to December 1981 which were maintained by contractor showing name of respondent no. 3 therein. An application was also filed requesting the Labour Court to summon original record from the contractor. The said contractor, however, did not appear.
8. The workman Jodha Ram himself appeared in the witness-box and deposed his statement. He admitted that he was never issued any identity card of M/S IEL (India) Limited. He disputed his thumb impression, photo copy on the wage and attendance register of the contractor produced by petitioner for the period January 1980 to December 1981 and said that his attendance used to be registered by the officers of M/s IEL, the petitioner.
9. On behalf of petitioners, Sri A.C. Banerjee and Brij Kumar Shukla deposed their statements. Sri Banerjee said that the workman was engaged by the contractor and has never worked in the establishment of petitioner. To the same effect is the statement given by Sri Brij Kumar Shukla. A letter/ slip of one S.L. Bhatia, an officer of the petitioner, was produced. It was marked as exhibit W3 in which request was made to Mr. G.B.K. Ram to take Jodha Ram respondent no. 3 as recruit and stated that he has worked in Urea Department and is a hard worker.
10. On behalf of petitioner there was one more document, i.e., the application filed under Rule 25 of U.P. Contract Labour Regulation and Abolition Rules, 1975 which appended thereto the list of labourers engaged by some contractors working with the petitioner's establishment and in the list relating to contractor M/s Super Builders, the name of the respondent no. 3 was mentioned at serial no. 2.
11. The Labour Court has held respondent no. 3 an employee of the petitioner and has given the award, impugned in this writ petition, in favour of him.
12. The respondent no. 2 has filed a counter affidavit before this Court reiterating the facts stated before Labour Court. It is further said that despite several opportunities afforded to petitioner, it did not adduce any evidence to show that the respondent no. 3 was a labour engaged by the contractor and, therefore, no interference is warranted with the impugned award.
13. Sri Ravi Kant, Senior Advocate, and Sri S. Chatterjee have advanced their arguments on behalf of the petitioner while Sri B.N. Singh and Sri Nand Lal Verma Advocates have made their submissions to support award and on behalf of respondent no. 3.
14. The rival submissions advanced by the learned counsel for the parties, in my view, give rise to the following issues, need be answered in this writ petition.
(a) What is the test to determine relationship of employer and employee in an industrial establishment particularly when a case set up by the industrial establishment is that the contesting workman is a labour engaged by the contractor?
(b) Initial burden to prove relationship of employer and employee whether lie on the workman or on the industrial establishment?
(c) Whether the Labour Court in the present case has rightly held existence of relationship of employer and employee between the petitioner and respondent no. 3? In other words whether Labour Court has rightly held respondent no. 3 an employee of the petitioner.
15. Sri Ravi Kant, learned Senior Advocate submitted that the onus to prove existence of relationship of employer and employee initially lie upon the workman. In the present case, the respondent no. 3 failed to discharge the said burden but the Labour Court illegally and wrongly put the burden upon the petitioner-establishment and, hence, has committed a patent error apparent on the face of the record rendering the award impugned in this writ petition illegal. He further submitted that there are two principal tests to arrive at a decision about relationship of employer and employee, i.e., the control and supervision; and, payment of salary and appointment. Neither the respondent no. 3 was appointed by petitioner nor he adduced any evidence in this regard nor there was anything to show control and supervision of petitioner and, therefore, there was no relationship of employer and employee between the respondent no. 3 and the petitioner. In support of submissions, he placed reliance on Apex Court decisions in General Manager (OSD) Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and another, 2011 (128) FLR 560; Workmen of Nilgiri Co-operative Marketing Society Ltd. Vs. State of Tamil Nadu and others, 2004 (101) FLR 137; Ram Singh and others Vs. Union Territory, Chandigarh and others, 2004 LLR 47; The General Manager, Tanda Thermal Power Project Vs. Jai Prakash Srivastava and another, 2008 (116) FLR 979; and Calcutta High Court decision in Indian Iron and Steel Company Ltd. (Burnpur Works, Burnpur) Vs. State of West Bengal and others, 2011 LLR 771.
16. Sri Bhupendra Nath Singh, Advocate, per contra, submitted that the initial burden was discharged by respondent no. 3 whereafter the onus shifted to employer but he failed to discharge its onus as a result whereof Labour Court has rightly held that respondent no. 3 was employed by the petitioner and was terminated without applying prescribed procedure. The termination of employee was illegal and thus no interference is called for in limited and narrow jurisdiction available to this Court while examining correctness of an award of the industrial court. He also placed reliance on the Apex Court decision in M/s. Basti Sugar Mills Ltd. Vs. Ram Ujagar and others, 1963 (7) FLR 253; Anoop Sharma Vs. Executing Engineer, Public Health Division No. 1, Panipat (Haryana), 2010 (5) SCC 507 and a Division Bench judgement of this Court in Sharda Ram and others Vs. State of U.P. and others 2004(2) ESC 681.
17. There are two aspects in this matter. So far as the respondent no. 3 is concerned, he is claiming a direct relationship of employer and employee with the petitioner-establishment. So far as the petitioner is concerned such direct relationship has been seriously disputed. Its case is that a contractor was engaged by petitioner who had engaged, in turn, respondent no. 3 for discharge of its contractual job and, therefore, there is no relationship of employer and employee between the petitioner and the respondent no. 3.
18. If this Court look into this matter in the light of the claim set up by workman-respondent no. 3, there is no doubt that existence of relationship of employer and employee has to be established by workman himself. Not only this he is also required to show and prove that he has been terminated without following the prescribed procedure in law and his termination is illegal. Here the nature of termination may also be of different nature. If he claims that the termination amounts to dismissal or removal by way of punishment, he has to plead and prove the said facts. In case the submission is that the termination is retrenchment and has been made in violation of the procedure prescribed in the statute namely Section 6-N of U.P.I.D.Act & 25F of I.D. Act, 1947, he has to plead and prove accordingly. It is only when the burden to prove certain facts as stated above is successfully discharged by the workman, the question of consideration of employer's defence would arise.
19. Now, I come to the second facet, the alternate case set up by the employer. In such cases where the plea of contractor's labour is set up by the industrial establishment, the initial burden to prove that it had engaged a contractor for certain requisite purposes, and that the workman, raising industrial dispute was engaged by such contractor, are the facts to be proved by Industrial Establishment. Initial burden lie upon Industrial Establishment and only when such onus is discharged or the above facts are admitted by workman only then the onus would shift upon the workman to prove existence of relationship of employer and employee directly with the concerned Industrial Establishment.
20. It is no matter of doubt that question whether a contract is a contract of service or contract for service or whether the concerned employee was the employee of a contractor is a vexed question not easy to be answered by following any strait jacket formula. Though the issue has come up for consideration before the Apex Court and various High Courts including this Court in several cases but none has laid down any such test to be applied as a rule of thumb so as to answer such vexed questions. Certain tests have been laid down time and again, but ultimately observations which have prevailed in all the Judgments and reiterated time and again are that it depends on the facts and circumstances of each case.
21. Some relevant facets which may have relevance and throw light on the question of relationship of employer and employee, are:-
(1) Who is the authority competent to appoint?
(2) Whether any appointment of letter has been issued?
(3)The source of payment of salary.
(4) Who actually pays the salary?
(5) Power of selecting the person concerned for particular job and day to day control and supervision.
(6) Existence of control and supervision.
(7) Power of dismissal.
(8) The nature of job whether provisional or skilled or semi-skilled or unskilled etc. (9) Nature of establishment and general practice prevailing therein regarding engagement of contractors and contract labours.
(10) Right to reject.
22. The question of determination of relationship of employer and employee initially has been discussed in detail by various jurists. In the context of the determination of liability of an employer, i.e., in classes related to task, Pollock's Law of Torts, 15th edition at pages 62 and 63, refers as under:-
"A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, 'retains the power of controlling the work'. A servant is a person subject to the command of his master as to the manner in which he shall do his work and the master is liable for his acts, neglects and defaults, to the extent to be specified. An independent contractor is one who undertakes to produce a given result, but, so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand."
23. Salmond's Treatise on the Law of Torts has observed at page 98 in 11th edition "what then, is the test of this distinction between a servant and an independent contractor? The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer; an in- dependent contractor is one who is his own master. A servant is a person engaged to obey his employer's orders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it-he is bound by his contract, but not by his employer's orders".
24. In Shivanandan Sharma Vs. Punjab National Bank Ltd., AIR 1955 SC 404, a three Judge Bench said that supervision and control test, prima facie, is the test for determining the relationship of employment. The nature or extent of control required to establish such relationship would vary from business to business and, hence, cannot be given a precise definition. Nature of business for the said purpose is a relevant fact. The Court observed that if master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with a employer enjoy the status of servants of the master. It is not always correct to say that persons appointed and liable to be dismissed by an independent contractor can in no circumstances be the employees of the third party. It also referred to a decision of House of Lords in Mersey Docks and Harbour Board Vs. Coggins and Griffith (Liverpool) Ltd, 1947 AC 1(C) where Lord Porter at page 17 has observed, " Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged.
25. In Dharangdhra Chemical Works Ltd. Vs. State of Saurashtra and ohters, AIR 1957 SC 264, the Court again considered the same question and observed that in order to be a workman under the definition of 'workman' under Section 2(z) of the Industrial Dispute Act, 1947, the essential condition is that he should be employed to do the work in the industry, that there should be the relationship between the employer and him, as between employer and employee or master and servant. Unless a person is so employed there can be no question of his being a workman within the definition. The Court further said that the principle according to which the relationship as between employee and employer or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for service and a contract of service. The distinction between two can be described as in the former, master can order or requires what is to be done while in the latter, master cannot only order or requires what has to be done but how it shall be done can also be commanded by him. The Court thereafter noticed that there are some otherwise observations in some English cases and after referring thereto it says that the correct method of approach would be to consider whether having regard to the nature of the work there was due control and supervision by the employer.
26. The Court also observed that the question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact. The decision of the Industrial Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution, unless, at the least, it is shown to be fully unsupported by evidence.
27. V.P. Gopala Rao Vs. Public Prosecutor, Andhra Pradesh, AIR 1970 SC 66 is again a judgement delivered by three Judges Bench. The matter had arisen out of prosecution initiated under Section 6(1) read with Section 92 of Factories Act, 1948. M/S Golden Tobacco Company Private Ltd having their Head Office and main factory at Bombay were prosecuted and tried for contravention of Section 6(1) of the Factories Act, 1948 and Rules 3 and 5 (3) of the Andhra Pradesh Factory Rules, 1950 for operating the factory without obtaining a licence from the Chief Inspector of Factories etc. The defence taken by M/s Golden Tobacco was that the premises at Eluru in Andhra Pradesh where sun-cured country tobacco purchased from the local producers is collected, processed and stored and then transported to the office at Bombay, did not constitute a factory, hence, there is no violation. The Trial Court accepted the defence but the decision was reversed in appeal by the High Court. This is how the matter came before the Apex Court. The principal question considered by the Court, was whether company's premises at Eluru constitute a factory. The definition of 'Factory' contains the words "whereon twenty or more workers are working or were working on any day of the preceding twelve months , and in any part of which a manufacturing process is being carried on" and that is how the incidental question arose whether those persons engaged at Eluru to perform the various processes, i.e., collection, storage and transportation, were workers. In this regard, the definition of worker under Section 2 (l) of the Factories Act was considered by the Court. The Court reiterated that it is a question of fact in each case whether the relationship of master and servant exists between the management and the worker. It is characterised on the contract of service between them. The earlier concept of worker involving the contract of service refers to certain indicia like (a) the master's power of selection of his servant, (b) the payment of wages and other remuneration, (c) the master's right to control the method of doing the work and (d) master's right of suspension or dismissal . However, with the change of time, things have gone to major change and in order to avoid exploitation, the victimisation, unfair labour practice, the courts have expanded the determining factors to a large extent. Referring to Dharangadhara Chemical Works (supra) it was observed that the critical test of the relationship of master and servant is the master's right of superintendence and control of the method of doing the work. However, referring to another decision in Birdhichand Sharma Vs. First Civil Judge, Nagpur, AIR 1961 SC 644, the Court observed that nature and extent of control vary in different industries. When the operation is of a simple nature and control could be exercised at the end of the day by the method of rejecting the bidis which did not come up to the proper standard, it also imply certain amount of supervision by the Management. There is no abstract a priori test of the work control required for establishing a contract of service. The Court found the existence of indicia of supervision in the Management and held the incumbents working at Eluru (Andhra Pradesh) as workers of M/s Golden Tobacco Company Private Limted. It, however, reiterated that the onus to prove relationship is on the person who asserts this fact.
28. In Workmen of Nilgiri Co-operative Marketing Society Ltd. Vs. Tamilnadu and others (supra) in para 37, the Apex Court observed as under:-
" Para 37. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the Court is required to consider several factors which would have a bearing on the result: (a) who is appointing authority; (b) who is the pay master; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of job, e.g. Whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject."
29. Normally the relationship of employer and employee does not exist between the employer and contractor and servant of an independent contractor. However, where the employer retains or assumes control over the means and method by which work of a contractor is to be done, it may be said that relationship between employer and employee exists between him and the servant of such a contractor.
30. In Indian Oversees Bank Vs. I.O.B. Staff Canteen Workers' Union and another, 2000(4) SCC 245, the court observed in para 18 of the Judgement that the standards and nature of tests to be applied for finding out the existence of master and servant relationship cannot be confined to or concretised into fixed formula(e) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case cannot by itself be held decisive of the whole issue, since it may depend upon each case to case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. The Court further observed that it is not desirable to lay down abstract principles or rules to serve as ready reckoner for all situations and thereby attempt to compartmentalise and peg them into any pigeon-hole formula(e) to be insisted upon as proof of such relationship.
31. The Court also said, where a person is engaged through an intermediary or otherwise for getting a job done, a question may arise as the appointment of an intermediary was only sham and nominal and rather than camouflage. Whenever such a dispute is raised, this question can be examined by the Labour Court. The Apex Court also considered the question of onus and said that the burden lie upon the person who claim himself to be the employee and it is only when the initial burden is discharged, it is open to the employer to prove otherwise. The Court observed that it is well settled principle of law the person who invoked a plea of existence of relationship of employer and employee the burden would be upon him.
32. In Ram Singh and others Vs. Union Territory, Chandigarh and others, 2004 LLR 47, the Court said that 'control' is one of the important test but not to be taken as the sole test. In determining the relationship of employer and employee all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole 'test of control'. An integrated approach is needed. 'Integration' test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant are- who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the 'mutual obligations' between them. It further considered that normally the relationship of employer and employee does not exist between an Employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer.
33. Concept of control and supervision has been explained in the context of contract labour by the Apex Court in International Airport Authority of India Vs. International Air Cargo Workers' Union and another, (2009) 13 SCC 374, and there it has been said:-
"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 contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor." (para 38) "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."(para 39)
34. In General Manager, OSD Bengal and Nagpur Cotton Mills Vs. Bharat Lal (supra), the Court observed who paid salary directly, is a relevant test. Onus to prove it lie upon the employee. Again, the direct control and supervision by the principal employer is one of the important test. The onus lie upon the employee to prove it.
35. The respondent-workman relied on the Constitution Bench judgement in M/s. Basti Sugar Mills Ltd. Vs. Ram Ujagar and others, (supra) where in the definition of workman under Section 2(z) and employer under Section 2(i) of U.P. Industrial Dispute Act, 1947 was under consideration. The Court found that there is nothing inherently abominable to extend the definition of employer so as to include within its ambit the servants or the persons employed by the contractor. The Court observed that Section 2(i) defining the employer is an inclusive definition. It is an extended definition so as to include within its ambit the workman engaged in the work of an industry through contractor. The only test is whether they were employed for the work of the industry or not.
36. In the context of the above discussion, this Court has to consider the correctness of the award provided the petitioner, who is an employer, shows that the findings of fact recorded by the labour court on the issue of relationship of master and servant, is perverse and absolutely based on no evidence. Once, it is established that the dispute about the above relation is a pure question of fact, a finding recorded by the labour court or the industrial tribunal, as the case may be, is not to be interfered lightly unless the scope of judicial review running in the restricted or narrow sphere, is made out.
37. When the employer contends that the concerned workman was employed through contractor to perform the job in the industrial establishment, it is implicit therein that the concerned person has worked in the industrial establishment and has discharged some duties in connection and relation to the industrial establishment. It, thus, becomes evident that it is not a case where a stranger is claiming relationship of master and servant for the reason that in such a case burden to prove upon such claimant is much bigger but once the employer itself admits that the person concerned has worked in the industrial establishment but not directly employed by him but through a contractor, the initial onus shifted from the person claiming himself to be a workman since his performance, duties and relationship to the extent of working in the industrial establishment is admitted by the employer industrial establishment.
38. In my view, the initial onus on the part of the workman, in the circumstances, stood shifted to the employer to prove that the workman was engaged by the contractor and not the principal employer himself. It is only when the engagement by contractor is established, the further onus would shift upon the workman to show that despite the engagement of workman through contractor, the actual control, supervision and other relevant tests to determine the relationship of master and servant continue to vest in the principal employer. This Court has to see whether the employer could prove that the workman was engaged by the contractor. The evidence sought to be adduced by the petitioner in support of their claim is that the respondent no. 3 was engaged by a contractor M/s Super Builders. A photo copy of the wage attendance register of the contractor for the period January 1980 to December 1981 was filed. It also filed copy of an application referable to Rule 25 of U.P. Contract Labour Regulation Abolition, 1975 containing a list of the persons employed by them which include the name of the respondent no. 3 at serial no. 2. The workman disputed and challenged the authenticity of these documents. The employer filed an application for summoning record from the contractor but he did not appear and produced the original record. It is, however, evident that the employer did not make any application for summoning the contractor M/s Super Builders or any of its official to depose as a witness to prove the aforesaid documents. The documents, thus, were not proved. No agreement or contract executed with the contractor was placed on record. The employer's witness admits that the respondent no. 3 has worked in the industrial establishment. Sri A.C. Banerjee said that the workman, according to his information, was functioning as a casual employee. A gate pass issued to the respondent no. 3 was exhibit W-4 which was admitted by the employer's witness but he claims that such gate pass was meant for contractor's workers though it was not mentioned as such on the said gate pass. He also admits that casual employees of the petitioner establishment are not issued appointment letters. Sri Brijesh Kumar Shukla stated that he has checked the attendance register of permanent, temporary and casual workers of the industrial establishment but did not find name of respondent no. 3 therein. He, however, admits that in the attendance register entries are made only in respect to those temporary, permanent or casual workers whose appointment letters are received by him but simultaneously admits that casual workers are not issued appointment letter but only an intimation is given to him. He also admits that if any engagement or attendance is taken in any department, which is not communicated to him, he may not have knowledge. In these circumstances, this Court finds it difficult to accept that the petitioner could discharge his burden to prove that the respondent no. 3 was a person employed through contractor. In order to record a finding in favour of the workman, the labour court has also referred to another evidence namely the slip issued by an official of the petitioner industrial establishment whereby Sri S.L. Bhatia requested one Sri G.V.K. Sharma to take Jodha Ram as Rigger. The said document exhibit W-3 was duly proved and no legal defect has been pointed out. The Labour Court, therefore, has recorded findings of fact supported by evidence in favour of respondent no. 3 holding that he satisfied the definition of workman and, therefore, the petitioner's contention that there was no relationship of employer and employee with the respondent no. 3 was not correct. This finding recorded by the labour court has not been shown perverse and, therefore, warrants no interference.
39. All the three issues formulated by this Court above are answered accordingly and while answering the issue no. (c) this court has no manner of doubt in upholding findings of labour court that the respondent no. 3 has succeeded in establishing his relationship of employee and employer with the petitioner, hence, it warrants no interference. It is, in these circumstances, the question that non-impleadment of contractor makes entire adjudication as vitiated in law, is misconceived and rejected.
40. It is virtually admitted that while terminating the respondent no. 3 no procedure for retrenchment was followed.
41. Therefore, his termination was clearly illegal. In my view, the award impugned in the writ petition warrants no interference.
42. The writ petition lacks merit and is dismissed accordingly.
43. No order as to costs.
Dt/11.4.2012 Ram Murti