New Delhi: Sixteen years after an industrial tribunal ordered Delhi’s Doordarshan Kendra to reinstate the employment of five casual workers, the Delhi High Court has upheld the award.
The workers were dismissed in 2001, and the tribunal had ordered their reinstatement in October, 2007, also asking DD to pay them 25 percent of the wages they missed out on as back pay. However, the high court stayed this award in May, 2008, and the stay remained in force through the intervening years. There were no substantial developments until now, with the court treating it as a ‘regular matter’ — one that’s not heard on priority.
But now, the high court has rejected the state-run broadcaster’s arguments against the tribunal’s award.
In the high court order made public Saturday, Justice Chandra Dhari Singh observed that in India, labourers, who mainly come from marginalised backgrounds, “are forced to live at their employers’ whims and fancies”. This, he said, was because “oftentimes, there’s huge disparity in the bargaining power of the said labour force”.
The case pertained to a labour dispute under the Industrial Disputes Act 1947 (IDA).
In its writ petition filed on 13 March, 2008, the DD Kendra had challenged the tribunal’s order in the HC, arguing that there was no employer-employee relationship with the workers in the first place since they were hired through a contractor.
It also argued that the onus was on the workers to prove that they had worked for 240 days in the year immediately preceding the date of their alleged termination.
The court, however, rejected this contention on the ground that “workmen belonging to the poor strata of society are uneducated and cannot be expected to maintain all the records of their employment”. It further said that the settled position of the industrial disputes law states that the referral of a dispute to an industrial tribunal would directly lead to the assumption of the existence of an employee-employer relationship.
Employer-employee relationship
In its ruling the Delhi HC noted that DD Kendra had entered into a contract with an agency ‘M/s Navnidh Carriers for Transport, Loading & Unloading Contraction Service’ on a commission basis in 1998. It was based on this that the broadcaster had argued that the workers were employed by the contractor.
Advocates Shruti Sharma and Pranav Giri, who represented DD, told the court that the tribunal failed to take into account that the state-run broadcaster had no authority or oversight over matters such as hiring, firing, promotions, wage determination, workplace assignment, transfers, or other employment conditions of the workers employed by the contractor.
They further argued that the contractor was not registered under the Contract Labour (Regulation & Abolition) Act, 1970 (CLRA) — a mandatory condition for the supply of labour. They also claimed that even if the contractor was not registered under CLRA, the tribunal should have at the most considered it a violation of Sections 7 (registration of certain establishment) and 12 (licensing of contractors ) of the Act and hence, the conclusion that the workers were DD’s employees was “legally incorrect and unsustainable”.
Another argument they made was that the workers’ entry or gate passes — which the respondents in the case had used as evidence to establish an employer-employee relationship — were issued after a request from the contractor. It also claimed that the tribunal did not appreciate that DD was not paying the workers any wages.
On their part, the workers, who were represented by senior advocate Sanjoy Ghose and advocate Prakhar Bhatnagar, claimed that they had been working at DD for five years without any break in their service and that they were entitled to be regularised. Instead, they were arbitrarily terminated from service on 1 February, 2001, the workers argued.
The workers — identified as Mohd. Shahbaz Khan (42), Dhanvir (44), Hans Raj (51), Tej Pal (47) and Manohar Paswan (51) — also contended that they were under DD’s direct employment, control, and supervision until the day of their termination.
Control test
The HC looked into two issues — first, if the provisions of the CLRA were applicable and adhered to, and, second, if there was an employer-employee relationship between the workers and DD Kendra.
The HC observed that the non-adherence to the mandate of Sections 7 and 12 of the CLRA Act does not directly establish an employer-employee relationship between the parties (workers and DD Kendra). Instead, it looked at other circumstantial evidence to conclude that there indeed was such a relationship even before the contractor came into the picture. The establishment of such a relationship is essential for the workers to avail the benefits under the ID Act.
To establish the employer-employee relationship, the HC relied on a ‘control test’, used by the Supreme Court and high courts in various rulings. Under this, to prove that an employer has control over an employee, control must exist in two aspects — the nature of work performed and the manner in which work is conducted.
However, the court acknowledged that gate passes — which, in this case, were issued between 1996 and 1998 — may not always establish an employee-employer relationship.
Instead, it relied on other material evidence, such as an appreciation letter that DD issued directly to some of the workers. The court held this as a compelling piece of evidence to prove such a relationship, saying that it established a direct control over them, therefore meeting the conditions of the control test.
The court also held that while the contractor was hired in July 1998, gate passes were issued to the employees even before this. This showed that a relationship between them existed before the contractor came into the picture, the court held.
“This court does not find any infirmity with the findings of the learned tribunal as the circumstantial evidence is sufficient to establish the direct relationship of an employee-employer between the parties,” the HC said. “The learned tribunal did establish a relationship of such a nature where the petitioner (DD Kendra) was solely in control of the functioning of the respondent workmen and thereby directly terminated their employment.”
(Edited by Uttara Ramaswamy)
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