Hari Shankar Sharma & Ors. vs M/S Artificial Limbs Manufacturing Corpn. & Ors.

Directly relevant to the crux of the matter is clause 43 of the agreement whereby the contractor was given the discretion to employ the workers already working in the canteen (like the appellants) but it was made clear that the contractor could take action against the canteen workers. It is noteworthy that the respondent No. 1 had no say as to who should be employed by the contractor nor the method of recruitment to be followed by the contractor. There was no obligation on the contractor to employ the persons who had served under earlier contractors. Even if the agreement had contained a condition that the contractor must retain the old employees, it would not necessarily mean that those employees were the employees of the establishment. As was said in R.K. Panda v. Steel Authority of India Ltd. (1994) 5 SCC 304: Such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. The issue is, therefore, primarily and ultimately one of fact to be determined by a fact finding tribunal . In the case before us, the terms of the agreement are inconclusive. Before the Labour Court the contractor stated in cross- examination that he used to supervise and control his employees and pay their salaries. Even the witnesses for the appellants stated that their salaries were paid by the contractor. The appellants witnesses also said that the respondent No. 2 brought the raw material. The respondent No. 1s witnesses said that the respondent No. 1 had no hand in the selection of the employees of the canteen. The prescribed procedure for appointing employees of the respondent No. 1 was not applied to them. The respondent No. 1 did not record their attendance nor paid them their salaries. The Labour Court also noted that the appellants witnesses were unable to identify or name any officer of the respondent No. 1 who they claimed supervised their work. The Labour Court found that the appellants were unable to prove that the respondent No. 1 exercised any control or supervision over the employees of the contractor. After a detailed analysis of the evidence, the Labour Court concluded that the appellants were not the employees of respondent No. 1. The finding cannot be termed to be perverse. Given this, it would have been inappropriate for the High Court under Article 226 to re-appreciate the evidence and come to a different factual conclusion. The High court did not do that nor do we propose to do so under Article 136. We accordingly dismiss the appeal but without any order as to costs. J. (S. Rajendra Babu) J. (Ruma Pal) November 26, 2001 See: Indian Petrochemicals Corporation Ltd. vs. Shramik Sena and Others 1999 (6) SCC 439 15