BEFORE SHRI ASHWIN DAVE, PRESIDING OFFICER OF

INDUSTRIAL TRIBUNAL NO 1, VADODARA

REFERENCE [IT] No 66/2004

and
REFERENCE [IT] No 69/2004
[Consolidated]
[1] REFERENCE [IT] NO 66/2004

FIRST PARTY

1. Hightough Steel Pvt. Ltd

At Mokasi Village, Taluka Savli, District

Vadodara.

2. Shri Sarbat Singh Chawla,

Director, A/57, Kunj Society, Alkapuri,

Vadodara

VERSUS

SECOND PARTY

Laborers working, Hasmukhbhai Patel,

Secretary, National Labor Union,

7, Old Faujdar Gali, Memco, Saijpur-Bogha,

Ahmedabad-382 345

[2] REFERENCE [IT] NO 69/2004

FIRST PARTY

1. Baroda Ispat Pvt. Ltd,

At Mokasi Village, Taluka Savli, District

Vadodara.

2. Shri Sarbat Singh Chawla, Director,

A/57, Kunj Society, Alkapuri, Vadodara

1
 VERSUS

SECOND PARTY

Laborers working, Hasmukhbhai Patel,

Secretary, National Labor Union,

7, Old Faujdar Gali, Memco, Saijpur-Bogha,

Ahmedabad-382 345

APPEARANCE

Representative Shri Piyusbhai Danak for First

Party

Representative Shri S.B. Chaudhary for Second

Party

J U D G M E N T

1. Reference Order

[a] Dispute of Reference [IT] No 66/2004

Deputy Secretary, Labor and Employment

Department, State of Gujarat, Gandhinagar vide

Order No KHR-2004-45-IDA-2004-957-M[4] dated

06/05/2004 referred the industrial disputes of

the matter specified in the schedule to the

order to the Industrial Court for

adjudication. The schedule of which is as

follows.

SCHEDULE

"Whether the Institution should pay the back

wages and other benefits to the laborers till

2
the date when the Institution lifts the

lockout imposed by the Institution from 15-3-

04?"

An amendment to the above reference order

of the Central Government issued by the

Central Government on 08/06/2004 the original

reference order of the entire Government and

the above amended order pointed out to the

parties.

[b] Dispute of Reference [IT] No 69/2004

Deputy Secretary, Labor and Employment

Department, G.R. Gandhinagar vide Order No

KHR-102004-40-IDA-102004-956-M[4] dated

03/05/2004 referred the industrial dispute to

the Industrial Court for adjudication as

specified in the Schedule to the order.

The schedule is as under

SCHEDULE

"Whether the Institution should pay the

back wages and other benefits to the laborers

till the date when the Institution lifts the

lockout imposed by the Institution from

15/03/2004?"

An amendment to the above reference order

of the Central Government issued by the

3
Central Government on 19/06/2004 The original

reference order of the entire Government and

the above amended order pointed out to the

parties.

2. Modification order of Hon’ble Gujarat High

Court in reference:-

Name of the dispute referred to the

Industrial Justice Commission by the concerned

Government both by the first party to the

dispute [hereinafter referred to as

Institution for short] Before Gujarat High

Court Special Civil Application No 10451/04

and Special Civil Application No 10453/04 was

challenged.

The High Court by its order dated

15/01/2013 has modified the reference sent by

the appropriate Government for judicial

purposes and has made the following order.

"9. Apart from that, the contention raised by

the petitioner is required to be considered

and which I am accepting that their defense of

contractor employees, abandonment by

contractor/employees and no lock out, will not

be considered by the Tribunal. The issue of

lock out is concluded by the term of Reference

4
which is not permissible under law. In that

view of the matter, both the References are

required to be modified and the term of

Reference is modified as under:

[a] The Industrial Tribunal will now decide

the question whether the petitioner is the

employer or the respondent Union's members are

workmen of the petitioner,

[b] The Industrial Tribunal will find out

whether it was a lock out declared by the

employer or it was a strike or abandonment by

the contractor/employees.

10. Hon’ble Court could have referred the

matter back to the State Government for

modification of reference but that would delay

the proceedings. Therefore, it is modified by

this Court.

The above order of the High Court was

followed by the Government of Gujarat vide LPA

No 1024/2015 and was challenged by LPA No

1025/2015. The High Court by its order dated

23/06/2015 has dismissed the above appeal of

the Government of Gujarat in these

circumstances. A modification made in the

reference by the High Court according to which

5
the issues appear for adjudication in the

present controversy.

3. Reference [IT] No 69/04 and the other

party [who is now hereinafter referred to as

the Petitioner' in brief] by Hon’ble Court by

its order dated 31/01/2011 applying to collect

and proceed Reference [IT] 69/04 from No -337

and Reference [IT] 66/04 and Reference [IT]

69/04 is ordered to be collected and executed.

Reference[IT] 66/04 filed by the other

party in reference[IT] 66/04 by the other

party to collect and proceed with this case by

Hon’ble Court vide its order dated 31/01/2011

present case reference[IT] In the matter of

66/04, ordered to be collected and executed.

Taking into consideration the above orders

of the Industrial Tribunal in both the above

disputes, both the disputes of reference [IT]

66/04 and reference [IT] 69/04 ordered to be

consolidated and disposed of by the present

joint order.

4. Facts OF Reference [IT] NO 66/04.

[a] For said matter has presented his

statement of demand dated 08/07/2004 vide

Exhibit:3 by the petitioner.

6
 High Court Special Civil Application No

10491/04 vide order dated 15/01/2013 the

petitioner has presented his statement of

claim at Exhibit:365 the brief facts of which

are that the establishment is engaged in the

industry of rolling-rerolling mills

manufacturing saliya, angles and more than 30

labor-intensive works in the establishment.

Provisions of different labor laws apply to

the Institution. The petitioner referred the

issue of payment of salary for the days due

till the time when the lockout was declared

illegal by the Institution and the lockout was

lifted to the Industrial Court for

adjudication. The reference has to be

disposed of as modified by the order of the

High Court. Both the entities of dispute are

same. Mutual workers are transferred in both

the Institutions. The Institution functioning

without entering the names of most of the

laborers in the pay-attendance sheet of the

Institution on blank paper from the applicant,

the signatures are paid less than the salary

due. The applicant is a laborer associated

with the production process of the

7
Institution. The Institution has not provided

the petitioner with rights and benefits like

attendance card pay slip, identity card etc.

as per various labor laws. The applicant has

performed job duties under the direct

supervision and supervision of the owner of

the establishment and has worked in the

establishment for more than 240 days per year.

The applicant has worked continuously for 16

hours in the Institution. The Institution

does not provide weekly leave or overtime pay

or bonus. The Institution was urging the

petitioner to organize under the auspices of

the National Labor Union, which the

Institution was informed of, despite the

demands of the Institution not being granted.

The applicant is not employed by the so-called

contractor nor paid by the contractor. The

petitioner was engaged in day-to-day

operations in the production process of the

Institution in the departments under the

Institution and the petitioner is not a

contractor but an employee of the Institution.

When the petitioner in this dispute was

performing his usual duties on 1-3-04, the

8
owner of the establishment Shri Sarabjitsinh

Chawla and Bhavnaben Chawla gave instructions

to stop the work. The applicant terminated

and locked out of the workplace. The

petitioner has not voluntarily abandoned work

or gone on any strike. The applicant has not

been employed by the Institution since

02/03/2004 and the applicant goes to report

for work in the Institution but, The

Institution does not employ the applicant.

Under these circumstances, the Institution has

not given work to the applicants since

02/03/2004 and has not allowed them to appear

for work and has locked them out. The

Institution has not paid the arrears of days

worked for 3 months from 01/12/2003 to

29/02/2004 to the applicant. The Institution

has illegally declared a lock out by stopping

the work on 01/03/2004 as the petitioner

demanded the arrears of salary and legal

rights. The Institution has engaged in unfair

labor practices and violated various labor

laws. The petitioners have given complaints to

the competent authorities of the State of

Gujarat. The work which the impugned

9
petitioner was doing is being brought in by

the Institution which is illegal. Although the

Assistant Labor Commissioner and other

officials have given notice to the applicants

and asked them to report to work, the

Institution does not report to the applicant.

The lock out of the institution continues till

date. The Institution has unlawfully

prevented the applicant from appearing for the

job. The applicant has not been paid the

salary for the days worked. No order of

termination of employment or dismissal

assigned to the petitioners. The petitioners

have not committed any breach of discipline or

gone on strike. The institution banned from

the lockout announced by the respective

government. The petitioners have given

various grievances to the government

authorities through the Union. Petitioner has

become unemployed due to illegal lock out of

the Institution. Petitioner declared that the

Institution has illegally locked out It is

requested to pay full salary to the

petitioners and the present dispute is

directed to be allowed.

10
[B] For said matter, submitted his written

reply dated 29/07/2004 vie Exhibit: 12 by the

Institution.

Following the order dated 15/01/2013

passed by the High Court in Special Civil

Application No 10491/04, the institution has

submitted its written reply dated 08/10/2013

vide No 375, the short fact of which is that

the petitioner The reference cannot be

legally sustained. The petitioner is not an

employee of the establishment and the master-

servant relationship does not exist between

the petitioner establishments The applicant is

employed by a contractor. Where the

contractor is not a party to the present work,

the Industrial Tribunal has no jurisdiction to

adjudicate the said dispute. Whether nexus

exists between the Industrial Court

Institution and the petitioner as per the

order of the High Court? It remains to be

determined. Badriprasad Ramjaspal who holds a

valid license under the Contract Labor

[Regulation and Abolition] Act was awarded the

contract by the Institution as per the terms

of the contract. The contract between the

11
contractor and the Institution is legal. The

Institution holds a valid license to the

applicants under the Contract Labor

[Regulation and Abolition] Act. The

contractor has employed the applicants in the

Institution as per their requirements. The

Institution is engaged in manufacturing of

steel bars. According to the Institution's

product market less or more in these

circumstances, the Institution has to employ

fewer laborers in some months and more in some

months. For the requirement of the

Institution, the Institution awarded the

contract to Badriprasad Ramjaspal and the

contractor has employed the applicants. The

Institution has a policy for their direct

workers. Applicants are not employed on the

rolls of the company. The Institution states

that as per Section 10 of the Contract Labor

[Regulation and Abolition] Act, there is no

ban on having contract labor in the

Institution. The Institution relies on the

judgment of the International Airport

Authority of India. The Institution states

that the applicant has not been directly paid

12
salary by the Institution. The petitioner was

getting salary through contractor Badriprasad

Ramjashpal. The contractor had supervision and

control over the petitioner. The Institution

did not have any direct control or supervision

over the petitioner. The Institution

truthfully states that the contractor

Badriprasad Ramjaspal who was supplying labor

since July-2003 suddenly stopped coming on

26/02/2004 without giving any notice. The

petitioners demanded advance amount against

salary. The Institution stated that the

advance can be paid only by the contractor.

The petitioners who were employed by the

contractor stopped coming to work from

01/03/04 and complained to the Assistant Labor

Commissioner, Vadodara for non-payment of

salary. The Assistant Labor Commissioner

called a meeting on 05/03/2004 to consider the

complaint of the applicant in this meeting, it

was stated that no complaint can be made

against the company where the applicant is an

employee of the contractor. In spite of the

above fact in the above meeting, the company

decided to pay Rs.1000/- to the workers who

13
have worked less than 15 days and Rs.2000/- to

the workers who have worked more than 15 days

on February-04 salary. The Institution has

paid as determined. The above payment was

decided to be offset from the bill payable to

the contractor. The union in which the present

dispute has arisen was present in the meeting

dated 05/03/2004 before the Assistant Labor

Commissioner. The petitioners did not present

any fact in the meeting that the petitioner

has not received salary since Dec-03. The old

contractor of the Institution stopped coming

from 26/02/2004 and this contractor did not

come till 15/03/2004 and the laborers of the

contractor stopped coming to work from

01/03/2004. New contractor Gayatri

Enterprises hired since 3-04. The new

contractor hired new laborers. The

petitioners went on strike from 01/03/2004 and

the work of the Institution was stopped till

12/03/2004. The petitioners have filed a

recovery application before the labor court

stating that they serving for 5 years and have

made various demands. In fact, the petitioner

was working in the Institution for a period of

14
less than one year. The petitioner in the

recovery application submitted different facts

stated and claim for closure compensation

/retrenchment compensation claimed stating

that he dismissed whereas in the present

dispute he is said to be locked out. An

affidavit dated 23/12/2004 filed before the

Hon'ble High Court by the Assistant Labor

Commissioner in which the petitioner is stated

to be a workman of the contractor. The

petitioner was not working in the Institution

on a permanent basis and was an employee of a

contractor. The reference of the applicant is

stated to be canceled on the ground that there

is no master-servant relationship between the

applicant and the Institution and the

applicant is an employee of the contractor.

[c] For said matter a produced his documents

vide Exhibit: 10, 17, 18, 19, 28, 212, 218,

231, 281, 302, 342, 347, 353, 311, 317, 377,

387 and Exhibit: 577 towards the applicant.

List produced vide Exhibit: 10 documents

submitted by the petitioner which are in the

affidavit of the laborers are given as

documents vide Exhibit: 117 to Exhibit:191.

15
 All the documents of list vide Exhibit:17

presented by the applicant assigned

Exhibit:33 to Exhibit:106.

All the documents of list vide Exhibit:18

presented by the applicant assigned

Exhibit:107 to Exhibit:114.

Vide Exhibit:19 documents submitted by the

applicant which Documents produced vide

Exhibit: 192 to Exhibit: 199 are given in the

affidavit of the Laborer.

Exhibit:200 to Exhibit:211 assigned to

the documents of List Exhibit: 28 presented by

the applicant.

List Exhibit: 212 submitted by the

applicant assigned Exhibit: 213 to Exhibit:

216.

Document produced vide Exhibit:235 to

Exhibit:240 assigned in List Exhibit: 218

submitted by the applicant.

List Exhibit: 231 produced by the

petitioner has given all the documents

produced vide Exhibit: 242 to Exhibit: 288.

List Exhibit: 291 documents presented by

the applicant are given as Exhibit: 293 to

Exhibit: 299 and Exhibit: 397 to Exhibit: 401.

16
 List Exhibit: 302 documents presented by

the applicant are given as Exhibit: 306 to

Exhibit: 320 and Exhibit: 402 to Exhibit: 417

All the documents of List Exhibit:342

produced by the applicant are given as

Exhibit:416 to Exhibit:458.

All the documents of List Exhibit: 347

submitted by the applicant are given as

Exhibit: 459 to Exhibit: 505.

List produced vide Exhibit: 353 produced

by the applicant has given all the documents

produced vide Exhibit: 506 to Exhibit: 520.

All the documents of List Exhibit: 361

submitted by the applicant are given as

Exhibit: 520 to Exhibit: 541.

All the documents of List Exhibit: 387

produced by the petitioner are given as

Exhibit: 542 to Exhibit: 568.

All the documents of List Exhibit:577

produced by the applicant are given as

Exhibit:581 to Exhibit:598.

[d] The petitioner is requested to produce the

documents in possession of the Institution

from Exhibit:22 to the present work.

17
 According to the order dated 25/10/2004 by

the Industrial Justice Commission vide

Exhibit:22, the Institution paid the identity

register, salary sheet, attendance sheet,

overtime pay and attendance sheet, bonus

sheet, attendance card, right leave and other

leave from Jan-97 to March-04. Attested copy

of the documents showing all kinds of payment

to the reference workmen, production report,

registration certificate under Companies Act

and Factories Act, visit book, registration

certificate and license under Contract Labor

[Regulation and Abolition] Act, agreement on

assignment of work given to contract workers

It is ordered to produce or to produce an

affidavit of document in this regard.

[e] A witness summons was issued by the

Industrial Tribunal as per the statement list

of criminal cases filed against the

Institution by the officer under Factories

Act, 1948 is presented from Exhibit: 230.

[f] For said matter, submitted his documentary

evidence from list Exhibit: 26 and list

Exhibit: 609 towards the institution.

18
 Witness Kamlesh Ochchwalal Shah, who was

summoned by Sadr Kame, has presented the labor

situation note dated 05/03/2004 from List

Exhibit: 224. The Institution has submitted a

labor situation note dated 05/03/2004 from

List Exhibit:609.

The documents of List Exhibit: 26

presented to the Institution were requested

back by the Institution from Exhibit: 333.

The documents numbered 1 to 15 among the

documents presented to the Institution by the

order vide Exhibit:333 returned by Hon’ble

Court. It does not appear from the record

that the said document was reissued by the

institution.

[g] Exhibit: 27 to Ramgopal Mathuralal Patel,

Exhibit: 30 to Gopal Ramchandra Mahato,

Exhibit: 32 to Natwar Singh Dolatsinh Rajput,

Exhibit: 217 to Babluprasad Durgaprasad Rawal,

Exhibit: 228 to Umashankar Jagannath Yadav,

Exhibit: 233 to Sudhir Ramkhilavan Mishra,

Exhibit: 321 to Moolchand Ramprasad Pal,

Exhibit: 325 to Jalaram Provision Store owner

Sachin Kumar Rameshbhai Patel, Exhibit: 339 to

Jagatpal Manupal presented in affidavit. A

19
cross-examination taken towards the

Institution of Said Witness

The sworn oral evidence of petitioner's

union representative Subhashbhai Bajrang Singh

Chaudhary from Exhibit: 29 and Secretary Shri

Hasmukhbhai Ambalal Patel from Exhibit: 31 and

owner of Jalaram Provision Store Rameshbhai

Shankarbhai Patel from Exhibit: 327 and

Rajabali Ramdas Yadav from Exhibit: 341

recorded.

Vide Exhibit: 289 the affidavit of Kamlesh

Rameshwar Borasi produced Exhibit:290 is

ordered to consider the cross-examination of

other affidavits in reference to the reference

affidavit of Exhibit:289.

Ajay Kumar Gopal Mahato from Exhibit: 303,

Ashok Kumar Bajrangsinh Jat from Exhibit: 351,

Rajkumar Nathu Rawat from Exhibit: 354,

Hariram Nathu Rawat from Exhibit: 355, Suresh

Satyadin Pal from Exhibit: 357 and Manoj Kumar

Rampyarelal Rawat from Exhibit: 358 presented

in the affidavit. The right of the

Institution to cross-examine the above

affidavit declared closed by the order under

20
Exhibit: 304, Exhibit: 356 and Exhibit: 359 by

Hon’ble Court.

The oral evidence on oath of Shri Kamlesh

Ochchwalal Shah summoned by summons on behalf

of the petitioner recorded Exhibit: 223.

Following the order of the High Court

dated 15-1-2013, the petitioner Exhibit:368 to

Natwarsingh Dolatsinh Rajput, Exhibit:370 to

Gopal Ramchandra after submitting the revised

statement of demand.

Exhibit: 371 to Bablu Durgaprasad Rawat,

Exhibit: 372 to Rakesh Kumar Durgaprasad

Rawat, Exhibit: 373 to Ajay Kumar Gopal Mahato

and Exhibit: 392 to Union Representative Shri

Subhashbhai Bajrang Singh Chowdhury presented

in the affidavit.

Among the above affidavits, cross-

examination taken in favor of the Institution

regarding the reference affidavits

Exhibit:368,370,371 and Exhibit:392.

It ordered by Hon’ble Court that cross-

examination as per Exhibit:370 shall be

considered as other witnesses from the order

under Exhibit:390.

21
 Affidavit No 574 of Chirag Manharbhai

Patel filed by the institution which cross-

examined by the petitioner.

The institution has waived its right to

take oral evidence from Exhibit:578.

4. FACTS OF REFERENCE [IT] NO 69/04.

[a] For said matter has presented his

statement of demand dated 8-7-04 from Exhibit:

4 by the petitioner.

Following the order dated 15/01/2013 of

the High Court in Special Civil Application

No 10491/04, the petitioner filed his claim

Exhibit:246 A statement is presented. All the

facts of the statement of claim presented by

the petitioner are same as the statement of

claim Exhibit:365 presented in the work

reference [IT] 66/2004 for the purpose of

avoiding repetition the facts of the statement

of claim Exhibit:246 are not mentioned here in

detail.

[B] For said matter, submitted his written

reply dated 30/07/2004 to Exhibit: 13 by the

Institution.

After the order dated 15/01/2013 in

Special CA No 10491/04 of the High Court, the

22
Institution submitted its written reply to the

statement of demand All the facts of the

written reply filed by the Institute are same

as the written reply of Exhibit:375 filed in

the work reference [IT] 66/2004 for the

purpose of avoiding repetition the facts of

the written reply of Exhibit:256 are not

mentioned in detail here.

[c] Said matter has made list vide Exhibit:

18, 19, 73, 116, 117, 121, 128, 200, 214, 248,

258 and 215 documents are produced

Apart from the 3 documents in the list

Exhibit: 18 presented by the applicant, the

documents produced vide Exhibit: 32 to

Exhibit: 72 and Exhibit: 76 to Exhibit: 108

assigned.

List Exhibit: 19 to Exhibit: 109 of the

documents submitted by the applicant

Exhibit:115 is given. The said document is

the affidavit of some of the applicants.

Two documents of list Exhibit: 73

presented by the applicant are given as

Exhibit: 74 to Exhibit: 75.

23
 All the documents of list Exhibit: 116

submitted by the applicant assigned Exhibit:

132 to Exhibit: 143.

Two documents of List Exhibit: 117

submitted by the applicant are given as

Exhibit: 118 to Exhibit: 119.

All the documents of List Exhibit:121

submitted by the applicant are given as

Exhibit:144 to Exhibit:149.

All the documents of List Exhibit: 128

submitted by the applicant are given as

Exhibit: 151 to Exhibit: 197.

List Exhibit: 200 produced by the

petitioner assigned Exhibit:202 to Exhibit:208

to some of the documents.

List Exhibit: 214 produced by the

petitioner has assigned Exhibit:217 to

Exhibit:231 to some of the documents.

[d] The petitioner is requested to produce the

documents in possession of the Institution

from Exhibit:22 to the present work.

By order dated 25/10/2004 under Exhibit:

22 by the Industrial Justice Commission, the

Institution is required to provide the

identity register, pay sheet, attendance

24
sheet, overtime pay and attendance sheet from

Jan-97 to March-04. The said document is the

affidavit of some of the applicants, Bonus

sheet, attendance card, leave and other leave

payment slips, production report, registration

certificate under Companies Act and Factories

Act, visit book, registration certificate and

license under Contract Labor [Regulation and

Abolition] Act, agreement regarding assignment

of work given to contract workers, the

reference employer is ordered to produce

certified copies of documents showing that

every kind of payment made or to produce an

affidavit of document to this effect.

[e] A witness summons was issued by the

Industrial Tribunal

According to which the statement list of

criminal cases filed against the Institution

by the officer under Factories Act, 1948 is

presented from Exhibit: 127.

[f] Documentary evidence from List Exhibit:26

submitted by For said matter, Institute is

Following is the document presented by the

Institution.

25
1. Attendance Sheet and Pay Sheet for the

period Feb-98 to March-2000, April-2000 to

March-2004

2. Entitled Leave Form from 1998 to 2004.

3. Identity card, register

4. Certificate of Incorporation.

[g] For the petitioner Exhibit: 27 to Natwar

Singh Dolatsinh Rajput, Exhibit: 28 to all

Durgaprasad, Exhibit: 29 to Ramgopal

Mathuralal Patel, Exhibit: 30 to Gopal

Ramchandra Mahato, Exhibit: 125 to Umashankar

Jagannath Yadav, Exhibit: 130 to Sudhir

Ramkhilavan. Mishra, from Exhibit: 233 The

affidavit of Moolchandra Ramprasad Pal and

Sachin Kumar Rameshbhai Patel, owner of

Jalaram Provision Store from Exhibit: 237

presented.

Exhibit:27, 28, 29, 30, 125, 130, 233 and

Exhibit:237 of the above affidavits of the

applicant cross-examined by the institution.

Exhibit:199 is ordered to consider the

cross-examination of other affidavits in

reference to the reference affidavit of

Exhibit:198. The right of the institution to

cross-examine the affidavit No 215 is declared

26
closed by order No 216. Exhibit: 120 has not

been cross-examined in the reference

affidavit.

The oral evidence on oath of Shri

Subhashbhai Bajrang Singh Choudhary, Union

representative of the petitioner, recorded in

Exhibit:31 and in Exhibit:211 of Shri

Surendrapuri Naratpuri Goswami, Deputy Labor

Commissioner summoned by summons on behalf of

the petitioner.

Following the order dated 15/01/2013 of

the High Court, after submitting the amended

statement of claim towards the applicant, the

applicant Exhibit: 249 to Natwar Singh Dolat

Singh Rajput, Exhibit: 251 to Bablu

Durgaprasad, Exhibit: 252 to Gopal Ramchandra

Mahato, Exhibit: 253 to Rakesh Kumar

Durgaprasad Rawat and Affidavit of Ajay Kumar

Gopal Mahato from Exhibit: 254 produced.

By the order under Exhibit: 250, Hon’ble

Court has declared the institute's right to

cross-examine the affidavit of Andhra-249

closed. Affidavits Exhibit:251 to Exhibit:254

filed by the petitioner have not been cross-

examined.

27
 Petitioner's right to take oral evidence

from Exhibit: 268 waived. The right of the

Institution to take oral evidence stopped by

the order under Exhibit: 271 by Hon’ble Court.

5. Arguments advanced by the parties.

Heard Shri SB Chaudhary, representative

for the petitioner and Shri Piyushbhai Danak,

representative of the Institute

For said matter has presented his lengthy

written arguments on behalf of the petitioner

from Nos. 602, 604, 607, 610, and 613.

The main submission of his written

argument on behalf of the petitioner is that

the petitioner was working in the Institution

and was not following the labor laws. The

Institution was not providing rights and

benefits to the petitioner as per labor laws.

The Institution did not pay the outstanding

salary to the petitioner for the period of 3

months from 01/12/2003 to 29/02/2004. As the

petitioner demanded his legal rights, the

Institution did not assign work to the

petitioner after 12-00 noon on 01/03/2004

after illegal lock-out. The applicant is

neither an employee of the contractor nor the

28
applicant. The applicant has not left his job.

The petitioner has made a written complaint

through the union to the government

authorities regarding the illegal act of the

Institution. The petitioner Institution has

raised the illegal lock-out and demanded full

salary for the lock-out period in support of

his contention. A number of High Court and

Hon’ble Supreme Court citations are

represented.

Arguing for the institution, their

representative Shri Piyushbhai Danak states

that the petitioner was not an employee of the

institution. The petitioner was a workman of

the contractor. The contractor has left the

job. The Institution has not declared a lock

out. An Institution that does not have an

employer-employee relationship between the

applicant and the Institution may request

cancellation of the applicant's reference.

The Institution names in support of their

argument. High Court judgments are presented.

By the High Court in Special Civil

Application No 10451/04 and Special Civil

Application No 10453/04 by order dated

29
15/01/2013, the reference sent by the

appropriate government for judicial purposes

modified. In accordance with the order of the

High Court the following issues appear in my

judgment.

1. Is the applicant a laborer of the

Institution and the Institution is the owner

of the laborers?

2. Whether the owner has declared a lock out

or the laborers strike contractor/labor left

the job?

3. What order?

My findings for the above mentioned points

are as follows for the reasons stated below:

1. in the affirmative.

2. The owner has declared a lock out.

3. As per final order.

REASONS

[a] Issue No 1

[1] Whether the applicant is an employee of

the Institution? That issue first arises in

my judgment. In his amended statement of claim

Exhibit:365, the petitioner was working in the

petitioner's Institution and since the time

the petitioner joined the employment, the

30
rights and benefits as per labor laws like,

attendance card, pay slip, identity card,

provident fund, ESI.

Witness Natwarsinh Dolatsinh Rajput on

behalf of the petitioner in his affidavit

Exhibit: 368 supports the facts of the

statement of claim of the petitioner stating

the fact that he was working in the petitioner

Institution and the Institution was not

issuing ID card, pay slip since joining the

job.

Petitioner Natwarsingh Dolatsingh Rajput

his Exhibit:368 in cross-examination of the

reference affidavit states that

“...It is true that the document of being an

employee of the Institution has not been

produced. Witness states that not given hence

not represented. A written demand made to the

company before raising this dispute that the

Institution was not providing the documents.

The documents are presented in the present

work on making written demand for documents

from the company. The proof that the company

used to pay us presented. Witness says that

this proof is with the company. We have made

31
a written application before Hon’ble Court to

produce this proof from the company.”

[2] Other witnesses on behalf of the

petitioner Gopal Ramchandra Mahato Exhibit:

370 and Babluprasad Durgaprasad Rawat Exhibit:

371 and Rakesh Kumar Durgaprasad Rawat

Exhibit: 372 and Ajay Kumar Gopal Mahato

Exhibit: 373 corroborate the facts of the

statement of claim.

Petitioner Gopal Ramchandra Mahato states

in cross-examination of his affidavit Exhibit:

370 that

“....I have presented evidence in this

work to show that I was working in Baroda

Steel. Baroda Steel Company does not pay

salary so I have not presented…

Petitioner Babluprasad Durgaprasad Rawat

in cross-examination of his affidavit Exhibit:

371 states that

“...the company was not giving me the pay

slip so I did not present it. I have not

produced the appointment letter showing that I

am an employee of the company. As the company

has not given me the appointment letter, I

cannot present it.”

32
 Exhibit:370 by order under Exhibit:390 by

the Industrial Court It is ordered that the

cross-examination of the affidavit shall be

treated as in all other affidavits presented.

[3] In the documents presented from For said

matter, list Exhibit:17, a copy of the

complaint filed by laborer Manojkumar at rank

No 1 regarding non-grant of benefits like

attendance card, pay slip, identity card to

various government authorities as per labor

law which is given as Exhibit: 33

On 04/03/2004 by the other workers of the

Institution and on 04/03/2004 through the

union through the complaints Exhibit: 35 and

Exhibit: 36, giving benefits like attendance

card, pay slip, identity card to different

government officials as per labor law. A copy

of the complaint regarding non-arrival is

presented. In this regard, different

complaints made by the petitioner to different

authorities at different times

Regarding the petitioner's complaint dated

05/03/2004, the Assistant Director, Industrial

Safety and Health, Vadodara vide his letter

dated 02/04/2004 submitted under his

33
Exhibit:38 has stated that the laborers

currently working in the factory are not

entitled to leave cards and identity cards

Violations of the law indicated by

interviewing for giving and not presenting the

attendance sheet and overtime work. Further,

by letter Exhibit: 85 dated 24/05/2004 by the

Chairman, the union told that the law

violated by the Institution in the above

matter.

From the above mentioned letter of

Exhibit:38 and Exhibit:85, identity cards are

not issued by the Institution and attendance

sheets are not kept and by doing so it seems

that the provisions of the law are being

violated.

[4] Witness Chirag Manharbhai Patel of the

Institution in his affidavit Exhibit: 574

states that the petitioner was working under

Badriprasad and another contractor and that

the petitioner is not an employee of the

Institution.

Witness in cross-examination states that

'I have read the statement of demand. I

don't know that the employee mentioned in the

34
statement of demand called through Badriprasad

Ramjarawal.....so they came through the

contractor...I don't remember whether the

employee mentioned in the statement of demand

gets attendance card, identity card etc. in

this Institution? It is true that I have not

produced any evidence to prove that laborers

were brought by the contractor for this

work... I have not seen the demand statement

workers' attendance sheets and pay sheets....

It is true that I have produced Badriprasad's

contract agreement for this work If I get this

agreement, I will present it in court.”

[5] For said matter submitted an application

by the petitioner seeking documents from the

institution from Exhibit:22. The petitioner

sought permission to submit other documents

such as attendance sheet, pay slip of the

institution to the present work.

Dated 25/10/2004 vide Exhibit:22 by the

Industrial Justice Commission ordered to

return the application seeking the documents

of the applicant to the Institution from Jan-

97 to Mar-04 showing the identity register,

salary and attendance sheets, overtime pay and

35
attendance sheet, bonus sheet, attendance

card, entitlement to leave and other statutory

leave, weekly. Affidavits of documents such

as slips, production report, registration

certificate of establishments under Companies

Act and Factories Act, visit book,

registration certificate under Contract Labor

Regulation and Abolition Act, licenses and

agreements showing payment of holiday wages

ordered to be presented.

After the order of Hon’ble Court, the

institution has issued List No 26 of the

institution for the period from 1998 to 2003,

staff attendance sheet from Jan-98 to March-

2001, attendance sheet from April-2001 to 2005

and Jan-98 to March-2004. Salary sheet,

identity card sheet and certificate of

incorporation were presented.

On behalf of the Institution, an

application was made on 27/10/2010 to return

the documents presented by Shri BM Patel from

list No 1 It is that ‘keeps the Learned

Advocate present and take his signature in

his presence and return the documents t on

condition of presentation,

36
 On 26/11/2010, requested to return the

documents from list Exhibit: 333 to list

Exhibit: 26 by the representative on behalf of

the Institution.

It was ordered by Hon’ble Court vide

Exhibit:333 that "the company advocate is

given back on the condition that he signs the

register as requested and presents it back to

the work letter".

According to the order of the Industrial

Court, by the Clerk of the Institute Shri BM

Patel dated The above document was received

back on 29/11/2010.

It does not appear from the record that

the recovered document of List Exhibit:26 was

subsequently produced by the institution for

perusal of Hon’ble Court.

The Institution has presented the

attendance sheet and salary sheet of the staff

employees from the list Exhibit:26 in

reference [IT] 69/2004. In reference

[IT]69/2004, the Institution has not submitted

the attendance sheet and salary sheet of the

laborers working in it.

37
[6] The institution asserts the fact that the

petitioners were employed by contractor

Badriprasad Pal.

The Institution has not produced an

agreement that the contract assigned to

Badriprasad Pal or to get the work executed

through contract labor in accordance with the

provisions of the Contract Labor Regulation

and Abolition Act. A copy of the required

registration or license of the contractor has

not been submitted in the present work.

[7] The petitioner has produced copies of the

criminal cases filed by the Government

authorities against the Institution for

violation of various labor laws from List

Exhibit:557 and copies of judgments against

the Institution in respect of which various

amounts fined for committing the said

offences. The above documents produced by the

petitioner are numbered which are presented in

the present case from Exhibit:581 to

Exhibit:598. If the above documents are taken

into consideration, they are as follows.

1. Hightough Steel Pvt. Against the

institution dated 18-3-04 not keeping

38
attendance card of rule-26[b][1], not keeping

pay slip of rule 26[2], not displaying minimum

wages act summary and rate notice For the

violation of Rule 22, a complaint was filed

with Exhibit:583 on 13/04/2004 in the Savli

Court before the Judicial Magistrate First

Class. In connection with the main complaint,

the accused has voluntarily confessed the

crime and the accused fined [Penalty] of

Rs.1800/-

2. Hightough Steel Pvt. Ltd against the

Institution dated 18/03/2004 during the visit

to the Institution for not keeping the

attendance sheet of rule-26[5], not keeping

the salary sheet of rule 26[1] and the

employees dated 01/02/2004 to 29/02/2004 the

salary has not been paid within the stipulated

time, a complaint Exhibit: 585 was filed in

the Savli Court on 13/04/2004 before the

Judicial Magistrate First Class. President in

connection with the complaint, the accused has

voluntarily confessed the crime and the

accused fined [Penalty] of Rs.1800/-

3. Baroda Ispat Pvt Ltd against the

institution on 18-3-04 not keeping inspection

39
book of rule-26[a], not keeping overtime

register, not keeping overtime register, not

sending annual form in the prescribed format

in Savli Court before Judicial Magistrate

First Class. .On 13/04/2004 a complaint

bearing Exhibit: 587 was filed. In connection

with the above complaint, the accused has

voluntarily confessed the crime and the

accused fined [Penalty] of Rs.1800/-

4. Baroda Ispat Pvt Ltd against the

institution dated 18-3-04 not keeping

attendance card during visit to the

institution Rule-26[b][1], not keeping pay

slip Rule 26[2], not displaying Minimum Wages

Act summary and rate notices A complaint

Exhibit: 589 was filed in Savli Court on 13-4-

04 before the Judicial Magistrate First Class

for violation of 22. In connection with the

main complaint, the accused has voluntarily

confessed the crime and the accused fined

[Penalty] of Rs.1800/-

5. Baroda Ispat Pvt. Ltd Against the

Institution on 18-3-03 during the visit to the

Institution for not keeping the attendance

sheet of Rule-26[5], not keeping the salary

40
sheet of Rule 26[1] and the employees from

01/02/2004 to 29/02/2004, the salary has not

been paid within the stipulated time, before

the Judicial Magistrate First Class, a

complaint was filed in the Savli Court on 13-

4-04 with Exhibit:591. In connection with the

main complaint, the accused made a voluntary

confession of the crime and imposed a fine of

Rs.1800/-

6. Hightough Steel Pvt against the

institution on 18-3-04 during the visit to the

institution for not keeping the inspection

book of rule-26[a], not keeping overtime

register of rule 25[2], not sending the annual

form in the prescribed format before the

Judicial Magistrate First Class in Savli

Court. .On 13-4-04 a complaint bearing

Exhibit: P93 was filed. In relation to the

above complaint, the accused has voluntarily

confessed the crime and the accused fined

[Penalty] of Rs.1800/-

[8] A complaint was filed in 1999 by an

officer appointed by the Government in Savli

Court before the Judicial Magistrate First

Class for violation of Gujarat Factory Rule

41
110 [A] against the Institution through Said

Work Nos-595 to 598. The Institution

voluntarily confessed to the crime and in 3

cases a fine of Rs.900/- and in one case a

fine of Rs.2000/- was imposed.

In the above circumstances, the

Institution filing a criminal complaint

against the Institution for violation of the

Factories Act and the Minimum Wages Act

voluntarily admits the offense and is punished

with fine.

[9] If the pleadings of the parties and the

evidence presented in the above paragraphs and

the legal situation are evaluated as a whole,

the primary burden of proving the fact that

the laborer is an employee of the Institution

rests on the laborer.

The applicant states the fact that he is

an employee of the Institution documentary

proof of being an employee of the Institution

by present work submitted The petitioner has

raised the contention that the Institution is

not providing documents like attendance card,

pay slip, identity card as per the labor law

42
and has made a written complaint to the

authorities appointed under the law.

A criminal complaint was filed by the

Government authority on the complaint of the

petitioner or his union for violation of the

provisions of the Minimum Wages Act, 1948

which the Institution has admitted and the

Institution penalized after voluntarily

admitting the offence.

Institution V/s Gujarat Factory under Rule

110 [a] punished with fine for violating the

provisions of the Act in 1999 by not providing

identity card to the laborer.

If the above fact is taken into

consideration, it is a fact that the

Institution does not provide primary proofs

like attendance card, identity card, pay slip

to the laborer. Moreover, attendance sheet,

salary sheet is not maintained by the

institution. Such a fact also appears. The

Minimum Wages Act, 1948 is a social welfare

law and the said law is designed to protect

unorganized sector workers from exploitation.

The Institution did not provide basic and

necessary documents to the laborer as per the

43
provisions of the Minimum Wages Act Violating

the provisions of the law cannot be taken

lightly.

Witness Chirag Manharbhai Patel of the

Institute in cross-examination of his

affidavit No 574 states that no evidence

produced to prove that the petitioner was

brought by the contractor. It is true that I

have not presented Badriprasad's contract

agreement in this work. If I get this

agreement, I will present it to Hon’ble Court.

Not a single document was produced to

show that the applicant employed on contract

basis by the Institution.

Documentary evidence regarding the

applicant's status has not been produced by

the Institution and the fact that primary job

documents were not provided to the applicant

by the Institution. In furtherance, it

appears that the institution was not

maintaining the attendance sheet and salary

sheet. Although Hon’ble Court has ordered the

institution to submit the documents as per the

order, the institution has not submitted the

documents as per the order. Considering all

44
these facts, there is reason to believe that

the Institution is concealing the fact

regarding the applicant's status.

[10] By the Supreme Court in Bhilwara Milk

Producers Co-operative Society V/s Vinodkumar

Sharma Dead by Legal Representative [2011-

LLR-1079] held that,

"In order to avoid their liability under

various labor statutes employers are very

often resorting to subterfuge by trying to

show that their employees are, in fact, the

employees of a contractor. It is high time

that this subterfuge must come to an end.

Labor statutes were meant to protect the

employees/workmen because it was realized that

the employers and the employees are not on an

equal bargaining position. Hence, protection

of employees was required so that they may not

be exploited. However, this new technique of

subterfuge has been adopted by some employers

in recent years in order to deny the rights of

the workers under various labor statutes by

showing that the concerned workers are not

their employees but are the employees/workmen

of a contractor, or that they are merely daily

45
wage or short term or casual employees when in

fact they are doing the work of regular

employees. This Court cannot countenance such

practices any more.

Globalization/liberalization in the name of

growth cannot be at the human cost of

exploitation of workers."

Hon’ble Supreme Court in the matter of RM

Yelati V/s Assistant Executive Engineer

2006[1] SCC 106 resolved that,

"Regarding Shri Desai's submissions that

this Court had consistently laid down that it

is for the workmen to prove that they had

worked for 240 days in a calendar year, Shri

Viswanathan submitted that this Court had in

the case of R.M. Yellatty V/s Assistant

Executive Engineer, reported in [2006] 1 SCC

106, observed as under:-

"Analyzing the above decisions of this

Court, it is clear that the provisions of the

Evidence Act in terms do not apply to the

proceedings under Section 10 of the Industrial

Disputes Act. However, applying general

principles and on reading the aforesaid

judgments, we find that this Court, has

46
repeatedly taken the view that the burden of

proof is on the claimant to show that he had

worked for 240 days in a given year. This

burden is discharged only upon the worker

stepping up in the witness box. This burden is

discharged upon the workman adducing cogent

evidence, both oral and documentary. In cases

of termination of services of daily-waged

earners, there will be no letter of

appointment of termination. There will also be

no receipt of proof of payment. Thus in most

cases , the worker [the claimant] can only

call upon the employer to produce before

Hon’ble Court the nominal muster roll for the

given period, the letter of appointment of

termination, if any, the wage register, the

attendance register, etc. Drawing of adverse

inference would ultimately depend thereafter

on the facts of each case. The above

decisions however make it clear that mere

affidavits or self-serving statements made by

the claimant worker will not suffice in the

matter of discharge of the burden placed by

law on the worker to prove that he had worked

for 240 days in a given year. The above

47
judgments further laid down that mere non-

production of muster rolls per se without any

plea of suppression by the claimant workman

will not be the ground for the Tribunal to

draw an adverse inference against the

management."

Hon’ble Supreme Court in Sriram Industrial

Enterprises V/s Maheksingh [SLP-[Civil]-

14456/2005, dated 8-3-07] and Director

Fisheries Terminal Division V/s The work and

name of Bhikhubhai Meghjibhai Chavda [2010[1]-

SCC-47] By the High Court in District

Development Officer V/s in name of Kishore

Kantibhai Joshi [SLP-27368/2007, dated 9-3-

17]. The above judgment of the Supreme Court

follows.

Hon’ble Gujarat High Court in Principal,

SV Doshi Girls High School V/s Lilaben

Somabhai Gadasa's work [2012[2] GLH-428] has

held that,

"10. The question of burden of proof would

lose its importance when the question of onus

of proof is taken up for consideration. In a

given case, the basic burden may be upon a

particular party and if the party does all

48
that is required under the law, then the basic

burden would stand discharged and the burden

would be shifted upon the other side to

disprove what said by the first party. It

cannot be disputed nor can be argued that the

official records are always available with the

Department. A workman, if appears in Hon’ble

Court, enters the dock and makes a statement

on oath that he had worked for 240 days in a

year and the statement is not denied by the

other side, or not disputed either, then the

said statement can be taken to be correct. In

the present matter, the workmen did work for

240 days and if that be so, the burden shifted

and the burden was on the other side to

disprove the allegations made by the workman.

The best of the evidence would be the records

which are regularly maintained by the

department. The Department cannot be allowed

to say that even if the basic burden was

discharged, they were not required to produce

the records which they possessed. If the best

evidence is kept back or is not produced in

Hon’ble Court, then Hon’ble Court would be

justified in drawing an adverse inference

49
against the party which could produce the best

evidence in Hon’ble Court."

The above judgment of Hon’ble Court is

about burden of proof Hon’ble Supreme Court. I

respectfully follow the principles of law laid

down by the Supreme Court in the present work.

In these circumstances the submission of

the Institution that the petitioner was a

workman of the contractor appears to be

misleading. In the circumstances, the

contrary is inferred on the submission of the

Institution that the petitioner was the

workman of the contractor and the fact that

the petitioner is working in the Institution

and not through the contractor, I hold that

the petitioner is the workman of the

Institution. I reject the contention that the

petitioner is a workman of the contractor by

inference to the contrary in the absence of

corroborating documents on the part of the

Institution.

(11) Arguing for the Institution, their

representative Shri Piyushbhai Danak states

that if the labor situation on 05/03/2004 is

taken into consideration, the petitioner

50
admits to be a worker of the contractor. The

petitioner is an employee of the contractor.

The documents relied on by the institution are

presented from List Exhibit: 224 and List

Exhibit: 609. If the above document is taken

into consideration, it decided to pay the

arrears of salary and expenses to the

employees of the contractor of the Institution

in the above document. The Said Note

stipulates the hiring of contractor workers.

List Exhibit:224 shows that the labor

situation reported to the government

official.

Kamlesh Ochchwalal Shah in his oral

evidence on oath Exhibit: 223 states in cross-

examination that

“...on 05/03/2004 both the parties were

called to discuss the labor situation. On

05/03/2004 Sarvjit Singh Chawla, Bhavnaben

Chawla were present. The settlement was

settled on the same day. No statement was

taken.... On conciliation dated 05/03/2004,

the company did not produce any evidence

regarding the employees being contractors.

The company did not represent any contractor

51
in the conciliation. The company has not

presented any contract deed in conciliation.

When we went to do.... in the company, we did

not find any contractor. During the

investigation in the company, the company did

not produce any evidence that the contractor

was an employee. The company has obtained the

registration under the Contract Labor Act.....

The company has not produced the registration

in conciliation. In Exhibit:44, 61, the text

that the employees are the employees of the

contractor is written based on the statement

given by the owner. No proof other than the

owner's statement about the contractor being

an employee was adduced."

Witness in cross-examination states that

We do not have the authority to

investigate whose employee this employee is in

the labor situation..... I will present the

copy of the discussion regarding the labor

situation on 05/03/2004 in Hon’ble Court. I

have recorded what was discussed on that day

and what the parties said. In this discussion

the employees also admitted that they are the

employees of the contractor and signed below.

52
Whether this employee belongs to the

contractor or to the company is not our

subject to verify.”

From the evidence of the above witness

summoned on behalf of the petitioner, the

institution has not produced any evidence of

the petitioner being a contractor in the

proceedings before them. The Institution did

not represent any contractor in the

conciliation. The Institution has not

presented any contract deed in conciliation.

Witness states that no other evidence adduced

other than the owner's statement that the

petitioner is an employee of the contractor.

Witness states that the parties have recorded

as stated. In this discussion the employees

have admitted that they are the employees of

the contractor and have signed below. Witness

states that whether the employee belongs to

the contractor or the company is subject to

verification the matter is not us.

In view of the above fact, since the labor

situation arose, the Institution has not

produced satisfactory documents that the

petitioner is a worker of the contractor. In

53
these circumstances the petitioner does not

become a workman of the contractor due to the

sole note of the parties dated 05/03/2004.

Further, the summons witness states that it is

not their object to verify whether the

applicant is an employee of the Institution or

an employee of the contractor.

List of documents of List Exhibit: 224 and

List Exhibit: 609 The applicant cannot be

considered to be a workman of the contractor.

In these circumstances I reject the contention

of the Institution that the petitioner is a

workman of the contractor from the mere text

of the aforesaid document. In the

circumstances, my answer to issue No 1 is in

the affirmative.

[12] The following judgments of the High Court

and Hon’ble Supreme Court are cited in support

of their contention.

By the Gujarat High Court in Amazon

Transport Service V/s The reference order is

quashed on the ground that the laborer is a

worker of the contractor In the matter of the

Asst Labor Commissioner SCA-21430/2016, dated

11/07/2017.

54
2. Bharat Cooking Coal Ltd by Jharkhand High

Court. V/s Secretary, Bihar Coilery

Shramgar Union [2014[1]- LLN-168] held that if

there is no registration or license under the

Contractor Labor Act, action can be taken for

violation thereof, regularization of workers

cannot be ordered.

The above judgments submitted to the

institution by me in the present work are

respectfully submitted. It was held that the

petitioner in the present work is the workman

of the Institution and not the workman of the

contractor.

3. Hon’ble Supreme Court in Food Corporation

of India V/s The judgment in the case of the

Provident Fund Commissioner [1990[1]- SCC-68]

deals with the liability of the employer to

contribute under section 7-A under the

Employees' Provident Fund and Miscellaneous

Provisional Act, 1952. In the circumstances,

the above judgment rendered by the institution

is not applicable to the facts of the present

case.

4. Gujarat Vadi Adal, Ahmedabad Municipal

Corporation V/s Gujarat Majdur Panchayat [SCA

55
No 3070/2015, dated 27/01/2017] Na work is

relied upon. According to the order dated

06/10/2017 passed by the High Court in LPA No

104/2016, the judgment rendered in favor of

the institute cannot be applied in the facts

of the present case.

[13] Hon’ble Supreme Court and of the High

Court following judgments are cited in support

of their contention.

1. Steel Authority of India V/s National

Union Water Front [2001-AIR-3527].

2. Gujarat Electricity Board V/s Hind

Labour Union [1995-AIR-1893].

3. Chetram V/s Presiding Officer,

Industrial Tribunal, Faridabad [2010[127]-

FLR-379].

4. Husenbhai, Calicut V/s Alath Factory

Tehsil Union, Kozhikode [1978-AIR-1410].

5. Steel Authority of India Ltd V/s

Gujarat Mazdoor Panchayat [2004[1]-GLR-

729].

6. The Workmen of Best Crompton Greaves Ltd

V/s The Management of Best & Crompton

Greaves Ltd [1978-AIR-1478].

56
7. Shivanandan Sharma V/s The Punjab

National Bank Ltd [1955- AIR-404].

8. Dhragandhra Chemical Works Ltd V/s

State of Saurashtra [1957- AIR-264].

9. BHARAT HEAVY ELECTRICAL LTD State of

U.P. [2003[6]-SCC – 528

10. Gujarat Majdur Panchayat V/s State of

Gujarat [1991[2]-GLR-1354],

11. Indian Petrochemicals Corp. Ltd V/s

Labor Army. [1999[6]-SCC-439].

12. Standard Vacuum Refinery Co. V/s Its

workers [1961- AIR-895].

13. Air India Statutory Corp. V/s United

Labor Union [1997-AIR-645].

14. Union of India v. Subir Mukherjee [1998-

AIR-2247].

15. Gujarat Electricity Board V/s Hind

Majdur Sabha [1985- GLR-790].

16. RK Panda V/s Steel Authority of India

[1994[5]-SCC-304]

17. All Labor Union V/s Indian Oil Corp.

Ltd [2009- LLR-575]

18. Shri Chintaman Rao V/s State of Madhya

Pradesh [1958- AIR-388]

57
19. Bharat Petroleum Corp. V/s Bharat

Petroleum General Workers Union [2006[3]-

LLJ-414]

20. Hindustan Steel Workers Construction Ltd

V/s Commissioner of Labor [1996-LLR-865]

21. National Thermal Power Corp. Ltd V/s

Kari Pothuraju [2003- AIR-3647]

22. Secretary, H.S.E.B. V/s Suresh

[1999[3]-SCC-501]

23. Tamil Manila Tozilar Sangam V/s

Chairman, Tamil Nadu Electoral Board,

[1998[2]-MLJ-580]

24. Chemical Labor Panchayat V/s Indian Oil

Corporation Ltd [2017-LLR-785]

25. Steel Authority of India Ltd V/s

Workman Steel Authority of India Ltd

[2017-CELLLR-716]

26. May Indian Farmers Fertilizer Co. Ltd

V/s Presiding Officer, Labor Court,

[2015-LLR-505]

27. General Manager, Bharat Heavy Electricals

Ltd V/s Canteen Workers of BHEL

Represented by BHEL Canteen Workers Union

[2015-LLR-580]

58
 I have respectfully considered the above

judgments submitted on behalf of the

petitioner in the present work. These

judgments deal with the contract labor system

and regularization of contract labor. In the

event that from the evidence presented in the

said work, the petitioner is found to be an

employee of the Institution and not through a

contractor, the above judgments presented by

the petitioner cannot be applied to the facts

of the present work.

[14] The following judgments are cited by the

petitioner in support of his contention.

1. Before the Supreme Court in Employers in

Relation to Bhagband Koilari V/s Its Workers

[1962[2]- LLJ-356]. The issue of competence

of references was involved. Hon’ble Supreme

Court has held that the reference is

competence on the facts of the case.

2. The Supreme Court in Royal Talkies,

Hyderabad V/s ESI Corp. [1978-AIR-1478].

ESI to workmen hired through contractor of

canteen and cycle stand Regarding the

application of the Act.

59
3. Supreme Court in SN Nilajkar V/s Jobs of

Telecom District Manager [2003-AIR-3553] The

judgment is related to dismissal of casual

workers. On the facts of the case, Hon’ble

Court declared the dismissal of the workers

illegal and ordered the reinstatement of the

workers.

4. Hon’ble Supreme Court in Silver Jubilee

Tailoring House V/s the work judgment of Chief

Inspector of Shops and Establishments [1974-

AIR-37] was given to Shramyogi to cut and sew

clothes. Laborer had to work as per

instructions. The fact of the said work has

determined that there is an employer-employee

relationship. The said judgment relates to

the provisions of the Andhra Pradesh Shops and

Establishments Act.

5. Hon’ble Supreme Court in Visakhapatnam

Dark Labor Board V/s Stevegar Association

[1970-AIR-1626] set aside the award of the

Industrial Tribunal holding the petitioner

liable to pay bonus and remanded the matter

back to the Industrial Tribunal.

6. Hon’ble Supreme Court in Dhirendra Chamoli

V/s State of U.P. [1986[1]-LLJ-134]

60
judgment regarding regularization of casual or

daily employees 7.

7. Hon’ble Supreme Court in Durgapur Casual

Workers Union V/s Food Corporation of India

[2015[1]-CLR-379] and The Workmen of Bhurkunda

Colliery V/s The Management of Bhurkunda

Colliery work judgment regarding

regularization of casual workers.

8. Hon’ble Supreme Court in Seedlingamanna

V/s The judgment in the case of Mamata Senoy

[2001-AIR-2896] is under the Karnataka Rent

Control Act, 1961.

9. Hon’ble Supreme Court in Bhavneshkumar

Dwivedi V/s Hindalco Industries Ltd

[2014[6]-SCC-190]. The verdict is about back

wages.

10. Hon’ble Apex Court in Management of

Karbeta Estate, Kotagiri V/s Rajmani Kam

[1960-AIR-893] held that lock out of work did

not entitle workers to lay off compensation.

11. Hon’ble Supreme Court in HD Singh V/s

The Reserve Bank of India case [1986-AIR-132]

defined retrenchment as the act of removing a

worker's name from the muster roll.

61
12. Hon’ble Supreme Court in Nix [e] Tools

V/s Ram Surat [2004[103]-FLR-102] upheld the

order to restore the employee to the job with

back wages.

13. Hon’ble Apex Court v/s Northern Doors Tea

Company Ltd V/s Workmen of Demdima Tea

Estate [1967-AIR- 560] work judgment related

to wages during lock out period

14. Hon’ble Supreme Court CESC Ltd V/s

Subhash Chandra Bose [1992-AIR-573] case

judgment ESI Act.

15. Hon’ble Supreme Court in Uptron India

Ltd V/s Shammibhan [1998[1]-SCR-719] Labor

judgment upheld the action of dismissal for

long absence and upheld the judgment of the

Industrial Tribunal to reinstate the employee

with 50% of the days' pay.

16. Hon’ble Supreme Court in Union of India

V/s TR Verma's case [1957-AIR-882] deals

with dismissal of a Government servant and

Article 311[2] of the Constitution.

17. Hon’ble By Gujarat High Court Medical

Officer V/s A petition against the judgment

of the Labor Court to reinstate the workman in

62
the case of Naranbhai Dharmabhai Prajapati

[2008[1]-GLR-821] is dismissed.

18. Hon’ble Bombay High Court Harish

Vijayakumar Khetan V/s The judgment in the

case of State of Maharashtra [1988[1]-LLJ-

3147] deals with the power of the appropriate

Government to prohibit lock-up under Section

10[3] of the ID Act.

19. Hon’ble Bombay High Court Bombay Majdur

Sabha V/s Bennett Coleman Co. Ltd [1980[1]-

LLJ-112] case judgment related to grant of

interim injunction regarding declaration of

lock out.

20. Hon’ble Rajasthan High Court Jodhpur

Vidhut Distribution Corporation Ltd V/s

Judge, Labor Court [2012[1]-LLJ-271] work

judgment regarding reinstatement on 50% of the

days' pay.

21. Hon’ble Bombay High Court Shakti

Electro Mechanical V/s The judgment of FN

Lala [1974[2]-LLJ-1] held that the dispute to

lift the lock out was referred to adjudication

whereas the contention of the company was that

the workmen had been released. Hon’ble The

High Court set aside the judgment of the

63
Industrial Tribunal and remanded the matter

back and directed it to decide the contentions

of the parties.

22. Hon’ble Delhi High Court in Asha Verma

V/s SEAT LTD [196 [2023]DLT-287]. The

award of work is in respect of days' pay.

23. Hon’ble Andhra Pradesh High Court in

Larson & Toubro Ltd V/s Boga Lakshmi

[2004[97]-FLR-736] work judgment is under

Workmen's Compensation Act.

24. Hon’ble Gujarat High Court State of

Gujarat V/s The judgment in the case of Aher

Jama Ramshi [2006-LLR-830] deals with

reinstatement of an individual workman.

25. Hon’ble Bombay High Court v. The India

Paper Pulp Co. Ltd V/s The India Paper

59lp Workers' Union [1950[52]- BOMLR-176] work

judgment is about reinstatement of workmen.

26. Hon’ble Allahabad High Court in Keharpal

Singh V/s In the case of Regional Dairy

[2004 [101]-FLR- 1066] the petitioner was

asked to present an industrial dispute

regarding master-servant relationship.

27. Hon’ble By Bombay High Court in Vaman

Maruti Dharat V/s M.P. In the name of Apte

64
[1989[1]-LLJ-134] the act of not giving work

to the workers if the employees do not give

undertaking is defined as lock out.

28. Hon’ble By the Madras High Court in K.

Kesav Reddy, Gold Merchant V/s The order of

the Labor Court Appellate Tribunal [AIR-1957-

MAD-632] has set aside the order of the Labor

Appellate Tribunal holding that the employer-

employee relationship is established.

29. Hon’ble Madras High Court E.K. Haj

Mohmandmeera Sahib V/s ESI Corp. [2003[1]-

LW-669]. Judgment of the work of ESI. Akt is

related.

I respectfully consider the above

judgments presented on behalf of the

petitioner

taken into account. On perusal of the said

judgments, the above judgments submitted by

the petitioner are not applicable to the facts

of the present case as these judgments are not

relevant to the subject matter of the present

dispute.

[B] Issue No 2

65
[1] Hon’ble High Court Special Civil

Application No 10451/04 and Special Civil

Application .No In the order dated 15-1-2013

dated 10453/04, the Industrial Court has asked

to decide the following issue.

"The Industrial Tribunal will find out

whether it was a lock out declared by the

employer or it was a strike or abandonment by

the contractor/employees."

The petitioner contends that on 1-3-04

when he was performing his usual duties, the

proprietors of the establishment Shri

Sarabjitsinh Chawla and Bhavnaben Chawla gave

instructions to stop the work. The applicant

terminated and locked out of the workplace.

The petitioner has not voluntarily abandoned

work nor has any strike been carried out by

Shri. The applicant has not been employed by

the Institution since 2-3-04. Under these

circumstances, the institution has locked out

from 2-3-04.

The Institution argued that the contractor

Badriprasad Ramjaspal who was supplying labor

since July-2003 had suddenly stopped coming on

26-2-04 without giving any notice. The old

66
contractor of the Institution stopped coming

from 26-2-04 and this contractor did not come

till 15-3-04 and the laborers of the

contractor stopped coming to work from 1-3-04.

The petitioners went on strike from 1-3-04.

[2] Section 2[l] of the ID Act defines a

lockout as a lockout when an employer refuses

to continue working any number of persons

employed.

In the definition of strike in Section 2

[Q] of ID Act A strike is a joint stoppage of

work by a group of persons employed in an

industry,

After verifying the evidence presented in

the above work, the Institution locked it.

Whether the workers have gone on strike

remains to be decided.

[3] The petitioner is held to be a workman of

the Institution for the reasons discussed in

point No 1.

Hightough Steel Pvt. And against the

Baroda Ispat Institute, the employees were not

paid within the stipulated time from 1-2-04 to

29-2-04, before the Judicial Magistrate First

67
Class, a complaint was filed in Savli Court No

585, 591. In connection with the main

complaint, the accused confessed to the crime

and ordered the accused to pay Rs. 1800/- is

fined.

Thus, the Institution appears to have

delayed payment of salary to the petitioners.

If the complaint of the petitioner union

dated 4-3-04 of For said matter, No 17/3

[Exhibit:35] is taken into consideration, the

petitioners have not been paid the salary

demanded by the petitioner and the petitioner

agitated and stopped the production process of

the mill illegally and it is submitted

accordingly.

Deputy Labor Commissioner regarding the

labor situation prevailing in the Institution

In reply to the petitioner's union vide letter

Exhibit: 44, the fact is stated that lock out

is proposed to be prohibited on the

representation that the Institution is not

hiring the workmen.

On behalf of the petitioner Witness

Natwarsinh Dolatsinh Rajput in his Exhibit:

368 and Gopal Ramchandra Mahto in his Exhibit:

68
370 and Babluprasad Durgaprasad Rawat in his

Exhibit: 371 and Rakesh Kumar Durgaprasad

Rawat in his Exhibit: 372 and Ajay Kumar Gopal

Mahto in his Exhibit: 373 of the statement of

the facts of the demand. Correspondingly, it

is stated that the Institution has declared

lock out from 1-3-04.

Kamlesh Ochchwalal Shah in his oral

evidence on oath Exhibit: 223 states in cross-

examination that

"The employees complained that the company

had stopped production and inquired with the

Government Labor Officer.... On 6-3-04 the

employees were asked to work and the parties

agreed. On 6-3-04 the employees were asked by

the company Complaint No 40, 41 was lodged

in our office regarding non-employment. On 10-

3-04 I visited the company again in person. I

took the statement of the employee on that

day. The owner was not present. One named

Chiragbhai Patel. The officer was present in

the company. The company did not issue any

letter regarding the employment of the

employees. I do not remember that the company

has complained that the workers of both the

69
companies have gone on strike. The company has

not created a labor situation that the

employees have gone on strike - lockout The

company has not shown any willingness to hire

until banned. The company did/did not

complain that the employees were not coming to

work."

Witness Chirag Manharbhai Patel on behalf

of the Institution in his affidavit Exhibit:

574 has not submitted that the petitioners

themselves have left the job or the

petitioners have gone on strike.

In cross-examination, Witness of the

institution states that

'It is true that this work has not

produced any evidence that the workers have

gone on strike. The situation arose as the

contractor did not pay the salary,” said

Witness.

It is not on record that the Institution

has ever written any letter as per the

petitioner's strike that the petitioner has

left the work nor has the Institution called

the petitioner to work.

70
 Hon’ble By the Supreme Court Express

News Papers Pvt. V/s

The work of Michael Mark [1963-AIR-1141]

determined that,

The respondents by going on strike clearly

indicated that they wanted to 'continue in

their employment but were only demanding

better terms. Such an attitude, far from

indicating abandonment of employment,

emphasizes the fact that the employment

continued as far as they were concerned. Shri

Sastri however, contended that where a person

deliberately absents himself from work he

would not be entitled to his wages and,

therefore, it would not be right to regard

such a person as being in service where the

abstention from work is attributable to an

illegal strike Whether the strike was legal

or illegal is not a matter on which we need to

express any opinion in this case, all that we

want to say is that where the employees absent

themselves from work because they have gone on

strike with the specific object of enforcing

the acceptance of their demands they cannot

be deemed to have abandoned their employment,

71
Shri Sastri then refers us to the various

notices given by the management from time to

time indicating that if the workers did not

return to work by a certain date they will be

deemed to have abandoned their employment. In

our opinion, the management could not, by

imposing a new term of employment,

unilaterally convert the absence of striking

employees into abandonment of their

employment. It may well be that under the

standing orders the appellants could, if the

strike was illegal, take disciplinary action

against the strikers and even dismiss them.

Hon’ble By Delhi High Court Mahanagar

Telephone Corporation Ltd V/s The case of

Shivandatta [2017-LLR-675] held that the

employer's contention that the employer has

left the job for lack of evidence to the

contrary cannot stand.

Hon’ble By Gujarat High Court in State

of Gujarat V/s The work of Jitendra M Rawal

[2005[106]-FLR-97] has held that when the

employer raises a dispute that the worker has

left the job, the employer should inform the

72
worker in writing about this otherwise the

dispute of the employer cannot stand.

I respectfully follow the principles of

law laid down by the Supreme Court and Name,

the High Court in the present work.

From the documents produced by the

petitioner and the evidence of the witnesses

on behalf of the petitioner, it appears that

the Institution has stopped providing work to

the petitioner. It does not appear that the

petitioner went on strike or that the

petitioner walked away from work. It appears

in the facts of the present work that the

Institution has stopped providing work to the

applicant and locked him out.

[4] Illegal strike and lockout in section 26

of ID Act There is provision for punishment.

If section 26[2] of the ID Act is taken into

consideration, the owner who initiates,

continues the lockout which is illegal under

this Act can be punished with imprisonment up

to one month or with fine.

The fact that the Assistant Labor

Commissioner, Vadodara wrote a letter dated

10-5-04 to the Institution informing that the

73
lockout was prohibited and asked to take the

workers to duty is evident from letter

Exhibit: 72 and Exhibit: 73. The Assistant

Juror Commissioner has sent a reply to the

union as per the letter Exhibit: 84 that

further action is being taken against the

Institution as per the provisions of ID Act

for not employing the laborers. The Chief

Officer has sent the above reply to the letter

Exhibit: 97 and Exhibit: 98 dated 30-6-04.

Hightough Institution for continuing the

prohibited lockout and not hiring the laborers

criminal complaint No 307/05 was filed on 9-

2-05, it stated that the Institution has

committed an offense under Section 26[2] of

the ID Act. Said complaint is presented from

Exhibit: 581.

A fine of Rs.1500/- was imposed by Hon’ble

Court on 22-8-09 by the complainant who

confessed to the above offence.

Pleaded guilty to being locked out by an

institution The fact that the institution is

locked for the reason of being is proved.

Under such circumstances, the Institution

74
locks out the applicants without giving them

work.

[5] In case the applicant has gone on strike

or the applicant has left work, the

Institution has to inform the applicant to

appear for duty in writing or by putting a

notice on the notice board or through public

notice. If the applicant has left work, he

has to give notice for appearing on duty or

absent without permission. The fact that such

action has not been taken by the Institution

or that the petitioner has gone on strike and

walked away from work has not been proved by

documentary evidence. In the circumstances,

the fact that the petitioners have gone on

strike and the petitioners have walked away

from work is not borne out by the evidence

presented.

I decide that the applicant is an employee

of the Institution and the Institution has

declared the applicant locked out from 15-3-04

without appearing for work. In the

circumstances my answer to point No 2 is

accordingly.

75
 Hon’ble Supreme Court in General Labor

Union [Red Flag] V/s The work of B.V. Chavan

[1985-AIR-297] has determined that,

"Lock-out defined in Section 2[L] of the

Industrial Disputes Act, 1974 ['ID Act' for

short] to mean the closing of a place of

business, or the suspension of work or the

refusal by an employer. to continue to employ

any number of persons employed by him. In

lockout the employer refuses to continue, to

employ the workmen employed by him even

though the business activity was not closed

down. The essence of lock-out is the refusal

of the employer to continue to employ workers.

There is no intention to close the industrial

activity. Even if the suspension of work is

ordered it would constitute lock-out. On the

other hand closure implies closing of

industrial activity as a consequence of which

workers are rendered jobless Section 22[2]

of the ID Act prohibits an employer in a

public utility service from locking out any of

his workers without giving notice as provided

therein. Section 23 prohibits an employer

from declaring a lock-out in any of the

76
eventualities mentioned therein, Lockout in

contravention of Section 23 is declared

illegal. Section 26 of the ID Act provides

that any of the practices listed in Schedule

11, III and IV would be an unfair labor

practice. Imposing and continuing a lock-out

deemed to be illegal under the Act is an

unfair labor practice."

Hon’ble Supreme Court in the matter of

India Marine Service Pvt Ltd by Supreme Court

V/s The work of its workers [1963-AIR-528]

held that,

"In a case where a strike is unjustified

and is followed by a look-out which has,

because of its long duration, become

unjustified it would not be a proper course

for an industrial tribunal to direct the

payment of the whole of the wages for the

period of the look-out. We would like to make

it clear that in a case where the strike is

unjustified and the look-out is justified the

workmen would not be entitled to any wages at

all. Similarly where the strike is justified

and the look-out is unjustified the workmen

77
would be entitled to the entire wages for the

period of strike and look-out."

The Statement Ltd V/s its workers [1976-

AIR-758] followed the judgment of in India

Marine Services Pvt before Hon’ble Supreme

Court

I respectfully follow the principles of

law laid down by the Supreme Court in the

present work.

[9] Institution declared lock out by

petitioners demanding salary is The Said

lock out of the Institution is found to be

illegal and unjustified and an unfair labor

practice. If the Institution has declared lock

out due to unjustified reasons, the

Institution is ordered to lift the lock out

announced on 15-3-04 and pay the salary and

other benefits to the applicant for the period

from the date of announcing the lock out to

the date of lifting the lock out.

[7] The registration of the National Labor

Union canceled by the Deputy Registration

Officer of Labor Unions and Deputy Labor

Commissioner, Gujarat State, Gandhinagar vide

their order dated 25-5-17. The Registrar,

78
Industrial Court, Gujarat, Ahmedabad vide his

letter dated 30-11-17 has informed all Hon’ble

Courts about the above matter.

It is pertinent to mention the fact that

the second party union filed its written

arguments dated 14-3-17 vide Exhibit: 602.

After the cancellation of the registration of

the National Labor Union by the order dated

25-5-17, Shri SB Chaudhary has appeared on

behalf of the Sadr Union. Although the union

ceased to exist legally after 25-5-17, Shri

S. B. Choudhary appeared as the representative

of the union and submitted that the procedure

appears to be inappropriate. It is advised

not to behave in this manner in future.

For all the reasons discussed above, the

following final order is made in the present

case.

J U D G M E N T

1. Reference [IT] No 66/2004 and Reference

[IT] No 69/2004 of Second Party are hereby

approved [allowed].

2. The second party is deemed to be an

employee of the first party.

79
3. It is resolved that the first party has

declared lock out from 15/03/2004 to the

second party without appearing for work.

4. Ordering that the first party has declared

an unjustified lock-out, to lift the lock-

out declared on 15/03/2004 and to pay the

salary and all other benefits to the

second party from the date of announcing

the lock-out to the date of lifting the

lock-out.

5. The first party has to implement the

present award within 30 days from the

publication of this judgment.

6. The first party to pay Rs.10,000/- [in

words one hundred thousand rupees only]

towards the cost of this reference to the

second party.

7. A certified copy shall be kept in

Reference [IT] No 69/2004.

08/02/2018 [Ashvinkumar Anilkumar Dave]

Vadodara Judge Code: GJ00776
Presiding Officer
Industrial Court No 1
Vadodara

80