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TMI Blog2003 (7) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court observed that if the respondents-workmen were in fact engaged by independent contractors, the record of their attendance should have been maintained by them and to show their control and supervision of the work performed by the workmen. Thus, considering the evidence, the facts 'and circumstances of the case and findings of fact recorded by the Labour Court, the High Court held that the workmen were under the direct employment, supervision and control of the appellant observing that sometimes, the employers, with a view to get over stringent provision of the labour law resort to engage the workmen through some intermediary and such an arrangement has to be termined as artificial. The finding that the respondents-workmen were the employees of the appellant, does not rest merely on the test of control. The other evidence and facts and circumstance of the case were also kept in mind in recording such a finding including a vital fact that the appellant did not produce the records alleging that they were not available which led to drawing adverse inference against them. It is not possible for us to hold that such concurrent findings recorded by the Labour Court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned common order dismissed Writ Petition Nos. 2109 of 1997 and 41787 of 1998 concurring with the findings recorded by the Labour Court. Writ Petition No. 1654 of 1999 was disposed of directing no further action for initiating criminal proceedings under Section 14 A of the Act if the appellant deposited a sum of ₹ 2,17,000 within a period of one month and in the event of failure of depositing the amount, there would be no impediment in launching criminal proceedings against the appellant. Aggrieved by and no satisfied with this common impugned order these appeals are brought before this Court. On behalf of the appellant, the following contentions were urged:- (1) That the findings recorded by the Labour Court as affirmed by the High Court are perverse being contrary to the evidence placed on record. (2) That the High Court committed a serious error in applying test of control in relation to the work of the respondents-workmen having regard to the definition of 'employer' contained in Section 2(i)(iv) of the Act as the work of the respondents-workmen was not part of the industry. (3) That the respondents-workmen had not worked for 240 days to complain violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, Sadhu Ram used to maintain the record of attendance of the respondents-workmen; when dispute arose consequent upon disengagement of the workman, he destroyed the attendance register by tearing it off at the instance of one Mr. Varshney who was working as Manager with the appellant. Further, in the impugned order, the High Court observed that if the respondents-workmen were in fact engaged by independent contractors, the record of their attendance should have been maintained by them and to show their control and supervision of the work performed by the workmen. Thus, considering the evidence, the facts 'and circumstances of the case and findings of fact recorded by the Labour Court, the High Court held that the workmen were under the direct employment, supervision and control of the appellant observing that sometimes, the employers, with a view to get over stringent provision of the labour law resort to engage the workmen through some intermediary and such an arrangement has to be termined as artificial. Further after referring to the case of Hussainbhai Calicut v. The Alath Factory Thizolali Union Kozhikode and Ors., [1978] 4 SCC 257, the High Court in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth though drapped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor, Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer based on Articles 38, 39, 42,43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law an not be misled by the maya of legal appearances. 6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe, trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of paragraphs 107-116, it is clear whether a workman is an employee of principal employer or not depends on the facts and circumstances of a given case. The case of Hussainbahi Calicut (supra) is neither dissented nor diluted. On the other hand, it is held that the said case is covered by class (ii) of para 107 which reads:- 107....................................................................... .................................................... (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as fact at the stage after employment of contract labour stood prohibited............. This apart, the finding that the respondents-workmen were the employees of the appellant, does not rest merely on the test of control. The other evidence and facts and circumstance of the case were also kept in mind in recording such a finding i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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