Pardeep vs The Presiding Officer, Industrial Tribunal-Cum-Labour Court, Panipat And Ors

CWP No. 9613 of 2021 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(243) CWP No. 9613 of 2021
Date of Decision: 02.11.2026
Pardeep ......Petitioner
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour .....Respondents
Court, Panipat and others
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Ishnoor Singh, Advocate and
Mr. Yuvraj Garg, Advocate for
Mr. Vikram Singh, Advocate
for the petitioner.
Mr. Chirag Wadhwa, DAG, Haryana.

KIRTI SINGH , J. (ORAL)
1. The present writ petition has been filed under Articles 226/227
of the Constitution of India seeking quashing of the award dated 03.02.2021
(Annexure P-1) passed by respondent No.1, whereby the reference raised on
behalf of the petitioner-workman was answered against him and his claim
for reinstatement with continuity of service and full back wages was
declined.
2. Briefly stated, as per the pleaded facts, the petitioner-workman
claims to have been appointed as a Helper on 05.05.2015 for watch and ward
of the works of complex/trucks and for the safety of Government material
with respondent Nos. 2 and 3. He claims to have worked continuously till
January 2017 and to have been drawing a monthly salary of Rs.9,900/-. His
services were allegedly terminated in January 2017 without assigning any
reason, notice or retrenchment compensation. The petitioner claimed that he
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Chandigarh
had completed more than 240 days of service and, consequently, his

CWP No. 9613 of 2021 -2-
termination was in violation of the provisions of the Industrial Disputes Act,
1947 (for short, ‘the Act of 1947’).
3. Being aggrieved from his alleged termination, the petitioner
filed reference/claim statement before the Industrial Tribunal-cum-Labour
Court, Panipat, to which respondents No. 2 and 3 filed their joint written
statement raising preliminary objections as well as contesting the claim on
merits. The petitioner maintained that his services had been orally
terminated, whereas respondents No. 2 and 3 disputed the alleged
termination and submitted that he had not been engaged against any
sanctioned post either on D.C. rates or on the basis of any separate orders. It
was further submitted that the petitioner had worked through an outsourcing
agency, namely, S.A.S. Security and Manpower Agency, Panchkula, till
30.09.2016.
4. Upon completion of pleadings and appreciation of the evidence
brought on record, the learned Tribunal, vide the impugned award dated
03.02.2021, answered the reference against the petitioner. Aggrieved
thereby, the petitioner has approached this Court by way of the present writ
petition.
5. Learned counsel for the petitioner submits that the learned
Tribunal has erred in dismissing the claim of the petitioner without properly
appreciating the evidence available on record. It is submitted that the
petitioner had been working as a Helper with respondent Nos. 2 and 3 since
05.05.2015 and his presence was duly recorded in the attendance register
maintained by the department. Learned counsel further submits that the only
witness examined by the management, namely Sh. Neeraj Bhardwaj, SDO,
while appearing as RW-1, admitted in his cross-examination that the
petitioner used to mark his presence in the attendance register and that the
total working days of the petitioner, as reflected in the documents
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CWP No. 9613 of 2021 -3-
Ex.WW2/1, were more than 240 days. It is further submitted that the said
witness also admitted that no document bearing the signatures of the
petitioner was available to show that he had been engaged through the
outsourcing agency instead of being paid directly at D.C. rates. It is further
submitted that the work performed by the petitioner was of perennial and
permanent in nature as performed by the permanent and regular workers.
The respondent-department employed the petitioner through some
contractors, who are merely intermediaries, and that the petitioner was
working under the direct control and supervision of respondents No. 2 and 3.
It has also been submitted that the petitioner had completed more than 240
days of service and his services were terminated without complying with the
provisions of Section 25-F of the Act of 1947. On these grounds,
interference with the impugned award is sought.
6. Per contra, learned State counsel supports the impugned award.
It is submitted that the petitioner was engaged by the department on D.C.
rates on 05.05.2015 purely on temporary basis, and that no appointment
letter was issued to the petitioner specifying the terms and conditions of
service. The petitioner was engaged from time to time as per the requirement
of the department by passing separate sanction orders, either on D.C. rates or
through an outsourcing agency. It is further submitted that the petitioner had
not worked with the respondent-department till January 2017, as alleged.
However, he had worked up to 30.09.2016 and, at that time, he was engaged
through an outsourcing agency, i.e. S.A.S. Security and Manpower Agency,
Panchkula. In this regard, an agreement dated 22.07.2016 was also executed
between respondent No. 2 and the aforesaid agency. Thus, since the services
of the petitioner were outsourced through an agency and there was no
employer-employee relationship between the petitioner and the respondent-
department, he could not claim continuity of service. Even otherwise, the
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CWP No. 9613 of 2021 -4-
petitioner had not completed 240 days of service in the relevant period.
Learned State counsel submits that the findings recorded by the learned
Tribunal are based upon appreciation of the oral and documentary evidence
available on record and do not warrant interference in exercise of writ
jurisdiction.
7. I have heard learned counsel for the parties and perused the
relevant material on record.
8. The principal questions which arise for consideration are
whether the petitioner has been able to establish that he was directly engaged
by respondent Nos. 2 and 3 and that an employer-employee relationship
existed between them, notwithstanding the respondents' plea of engagement
through an outsourcing agency; and whether the petitioner had rendered 240
days of service during the twelve months preceding the alleged date of
termination so as to attract the protection of Section 25-F of the Act of 1947.
9. The protection against retrenchment under Section 25-F of the
Act of 1947 is available to a workman who satisfies the requirement of
continuous service as contemplated under Section 25-B of the Act. In terms
of Section 25-B(2)(a), a workman is deemed to have been in continuous
service for one year if he has actually worked for not less than 240 days
during the period of twelve calendar months preceding the date with
reference to which the calculation is to be made. The initial burden of
establishing the requisite period of service rests upon the workman asserting
such a claim. In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25,
the Hon'ble Supreme Court held that a mere statement or affidavit of the
workman would not, by itself, be sufficient to establish completion of 240
days. The said principle was further reiterated in Surendranagar District
Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750. Equally, the
existence of an employer-employee relationship is a foundational
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CWP No. 9613 of 2021 -5-
requirement, and the burden of establishing such relationship initially rests
upon the person who asserts it. The mere fact that a person has rendered
services at an establishment would not, by itself, be sufficient to establish
that he was employed by the principal employer, particularly where
engagement through an independent service provider is specifically pleaded
and supported by material on record.
10. In the present case, the petitioner asserts that he was directly
engaged by the respondent-department and continued to work till January
2017. However, the material on record reflects that his engagement was not
under one continuous arrangement. The respondents have placed on record
the details of separate sanction orders under which the petitioner was
engaged from time to time, initially on D.C. rates and subsequently through
an outsourcing agency. More significantly, the petitioner's own witness, Sh.
Sulender, Junior Engineer, while appearing as WW-2, admitted during his
cross-examination that the petitioner had worked with the department from
September 2015 till 30.09.2016 through an outsourcing agency and that
payments in respect of the services rendered were made to the said agency.
The aforesaid admission assumes significance when considered alongside
the petitioner's own testimony and the documentary material relied upon by
the respondents. Thus, the evidence does not support the petitioner's
assertion that he continued to be directly engaged by the respondent-
department throughout the period claimed by him.
11. The petitioner has also not been able to establish that the
outsourcing arrangement was merely a camouflage or that the agency was
only an intermediary with no independent role in the engagement and
payment of the personnel deployed by it. The agreement dated 22.07.2016
executed between respondent No. 2 and S.A.S. Security and Manpower
Agency, Panchkula, provides for deployment of personnel through the
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CWP No. 9613 of 2021 -6-
service provider and specifically stipulates that the identity cards of such
personnel would be issued by the service provider and that their
remuneration would be paid through it. Though the agreement contemplates
close supervision by the department and also provides for disciplinary action
by the department, these stipulations, by themselves, cannot be regarded as
conclusive of a direct employer-employee relationship. The terms of the
agreement have to be read as a whole and considered alongside the actual
nature of engagement and payment. The mere exercise of supervision over
the work performed at the departmental establishment would not, in the
absence of other supporting material, establish that the contract was sham or
that the petitioner had been directly appointed by the department. In this
regard, the principle laid down by the Hon'ble Supreme Court in Workmen
of Nilgiri Co-operative Marketing Society Ltd. v. State of Tamil Nadu,
(2004) 3 SCC 514, is apposite, wherein it was held that the determination of
an employer-employee relationship depends upon the cumulative effect of
the relevant circumstances and that the burden of establishing such
relationship rests upon the person who asserts it.
12. The absence of an appointment letter or a formal termination
order, by itself, may not be determinative of the nature of employment.
However, in the present case, the same has to be considered along with the
other admissions made by the petitioner. While appearing as WW-1, the
petitioner admitted that he was not in possession of any appointment letter or
termination letter issued by the respondent-department. He further admitted
that there was no document on record to establish that he had worked with
the respondent-department till January 2017. Significantly, he also admitted
that he had received salary for the month of January 2017 from the
outsourcing agency. These admissions lend support to the respondents' stand
that the petitioner was engaged through the service provider and that the
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CWP No. 9613 of 2021 -7-
alleged cessation of his services could not be attributed to any act of
retrenchment by the respondent-department. The submission of learned
counsel for the petitioner regarding the entries in the attendance register and
the alleged admissions of RW-1 has also been considered. Even if the
attendance entries and the number of working days relied upon by the
petitioner are taken into account, they establish, at the highest, his presence
and performance of work at the establishment. They do not, in themselves,
establish that he was directly employed by the respondent-department or that
the outsourcing arrangement was sham. The said material has to be
appreciated in conjunction with the admission of WW-2 regarding
engagement through the outsourcing agency and the petitioner's own
admission regarding receipt of salary from that agency. Viewed
cumulatively, the evidence falls short of establishing the relationship of
master and servant between the petitioner and respondent Nos. 2 and 3.
13. The question of completion of 240 days also has to be examined
in the aforesaid factual backdrop. The statutory requirement under Section
25-B(2)(a) is not referable merely to a calendar year but to the twelve
months immediately preceding the relevant date. In the present case, the
petitioner's assertion of continuous service till January 2017 is not supported
by any cogent material establishing direct employment with the respondent-
department throughout the said period. The evidence noticed above
establishes that, during the disputed period, the services were obtained
through an outsourcing agency and that the petitioner himself received his
salary for January 2017 through the said agency. The attendance entries
relied upon by the petitioner, without establishing that the days reflected
therein were days of service rendered by him as an employee of respondent
Nos. 2 and 3, cannot by themselves satisfy the statutory requirement. Even
otherwise, the petitioner has not been able to demonstrate that he had
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CWP No. 9613 of 2021 -8-
completed 240 days of continuous service with the respondent-department
during the twelve months preceding the alleged termination. In the absence
of proof of the requisite relationship and the statutory period of service, the
question of non-compliance with Section 25-F of the Act of 1947 does not
arise.
14. It is also necessary to bear in mind that the present proceedings
are not an appeal against the impugned award. The jurisdiction of this Court
under Articles 226 and 227 of the Constitution is supervisory and not
appellate. Interference with the findings recorded by the Labour
Court/Industrial Tribunal would be warranted where such findings are shown
to be perverse, based on no evidence or vitiated by a patent error of law or
jurisdiction. A mere possibility of taking a different view of the evidence
would not, by itself, furnish a ground for interference. In the present case,
the findings recorded by the learned Tribunal are supported by the material
available on record and the petitioner has not been able to demonstrate any
perversity or legal infirmity warranting interference in exercise of the
supervisory jurisdiction of this Court.
15. Accordingly, no ground for interference with the impugned
award dated 03.02.2021 is made out. The present writ petition is, therefore,
dismissed.
16. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(KIRTI SINGH)
JUDGE
nd
November 02 , 2026
Gurpreet Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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Chandigarh