NATIONAL INSTITUTE OF MENTAL HEALTH AND NEUROSCIENCES (NIMHANS) vs UNION OF INDIA
- Court
- Karnataka High Court
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HC-KAR
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WP No. 11889 of 2026
C/W WP No. 11870 of 2026
WP No. 11895 of 2026
CNR: KAHC010262462026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 12 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
WRIT PETITION NO. 11889 OF 2026 (L-RES)
C/W
WRIT PETITION NO. 11870 OF 2026 (L-RES)
WRIT PETITION NO. 11895 OF 2026 (L-RES)
IN WP No. 11889/2026
BETWEEN:
NATIONAL INSTITUTE OF MENTAL HEALTH
AND NEUROSCIENCES (NIMHANS)
HOSUR ROAD, BANGALORE MILK DAIRY
BANGALORE-560 029
REP. BY IT'S I/C DIRECTOR
…PETITIONER
(BY SRI. PRABHAKAR RAO K., ADVOCATE)
AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY
MINISTRY OF LABOUR AND EMPLOYMENT
SHRAM SHAKTI BHAVAN, RAFI MARG
NEW DELHI-110001.
2. DEPUTY CENTRAL LABOUR
COMMISSIONER (CENTRAL)
RD
SHRAM SADAN, 3 MAIN
RD ND
3 CROSS, 2 PHASE
YASHWANTHPUR,
BANGALORE-560022.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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3. PRESIDENT
NIMHANS PRAGATIPARA WORKERS UNION
NO. 14, RIYAZ BUILDING
BASAVANAGARA ROAD, HOODY
BANGALORE-560048.
4. THE PROPRIETOR
SREE VINAYAKA ENTERPRISES AND FACILITY
MANAGEMENT PRIVATE LIMITED
ND TH
NO. 512, 2 C MAIN, 11 BLOCK
NAGARBHAVI, BANGALORE-560072.
…RESPONDENTS
(BY SRI. KASINAGALINGAM S., ADVOCATE FOR R1 & R2:
SMT. MAITREYI KRISHNAN, ADVOCATE FOR R3:
SRI N MANJUNATHA SHETTY, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER OF REFERENCE DATED
30.07.2024 BEARING NO.95(FOC/41)2024-B4 WHICH IS AT
ANNEXURE-E TO THIS PETITION AND CALL FOR RECORDS IN
THE ORDER OF REFERENCE NO. 95(FOC/41)2024-B4 FROM
ND
THE 2 RESPONDENT AND PASS SUCH OTHER ORDERS
WHICH THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST
OF JUSTICE AND EQUITY.
IN WP NO. 11870/2026
BETWEEN:
BETWEEN:
NATIONAL INSTITUTE OF MENTAL HEALTH
AND NEUROSCIENCES (NIMHANS)
HOSUR ROAD, BANGALORE MILK DAIRY
BANGALORE-560 029
REP. BY IT'S I/C DIRECTOR
…PETITIONER
(BY SRI. PRABHAKAR RAO K., ADVOCATE)
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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WP No. 11889 of 2026
C/W WP No. 11870 of 2026
WP No. 11895 of 2026
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AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY
MINISTRY OF LABOUR AND EMPLOYMENT
SHRAM SHAKTI BHAVAN, RAFI MARG
NEW DELHI-110001.
2. DEPUTY CENTRAL LABOUR
COMMISSIONER (CENTRAL)
RD
SHRAM SADAN, 3 MAIN
RD ND
3 CROSS, 2 PHASE
YASHWANTHPUR, BANGALORE-560022.
3. PRESIDENT
NIMHANS PRAGATIPARA WORKERS UNION
NO. 14, RIYAZ BUILDING
BASAVANAGARA ROAD, HOODY
BANGALORE-560048.
4. THE PROPRIETOR
SREE VINAYAKA ENTERPRISES AND FACILITY
MANAGEMENT PRIVATE LIMITED
ND TH
NO. 512, 2 C MAIN, 11 BLOCK
NAGARBHAVI, BANGALORE-560072.
…RESPONDENTS
(BY SRI. KASINAGALINGAM S., ADVOCATE FOR R1 & R2:
SMT. MAITREYI KRISHNAN, ADVOCATE FOR R3:
SRI N MANJUNATHA SHETTY, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER OF REFERENCE DATED
20.11.2025 BEARING NO.95(FOC/81)2025-B4 WHICH IS AT
ANNEXURE-H TO THIS PETITION AND CALL FOR RECORDS IN
THE ORDER OF REFERENCE NO. 95(FOC/81)2025-B4 FROM
ND
THE 2 RESPONDENT AND PASS SUCH OTHER ORDERS
WHICH THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST
OF JUSTICE AND EQUITY.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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WP No. 11889 of 2026
C/W WP No. 11870 of 2026
WP No. 11895 of 2026
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IN WP NO. 11895/2026
BETWEEN:
NATIONAL INSTITUTE OF MENTAL HEALTH
AND NEUROSCIENCES (NIMHANS)
HOSUR ROAD, BANGALORE MILK DAIRY
BANGALORE-560 029
REP. BY IT'S I/C DIRECTOR
…PETITIONER
(BY SRI. PRABHAKAR RAO K., ADVOCATE)
AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY
MINISTRY OF LABOUR AND EMPLOYMENT
SHRAM SHAKTI BHAVAN, RAFI MARG
NEW DELHI-110001.
2. DEPUTY CENTRAL LABOUR
COMMISSIONER (CENTRAL)
RD
SHRAM SADAN, 3 MAIN
RD ND
3 CROSS, 2 PHASE
YASHWANTHPUR, BANGALORE-560022.
3. PRESIDENT
NIMHANS PRAGATIPARA WORKERS UNION
NO. 14, RIYAZ BUILDING
BASAVANAGARA ROAD, HOODY
BANGALORE-560048.
4. THE PROPRIETOR
SREE VINAYAKA ENTERPRISES AND FACILITY
MANAGEMENT PRIVATE LIMITED
ND TH
NO. 512, 2 C MAIN, 11 BLOCK
NAGARBHAVI, BANGALORE-560072.
…RESPONDENTS
(BY SRI. KASINAGALINGAM S., ADVOCATE FOR R1 & R2:
SMT. MAITREYI KRISHNAN, ADVOCATE FOR R3:
SRI N MANJUNATHA SHETTY, ADVOCATE FOR R4)
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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WP No. 11889 of 2026
C/W WP No. 11870 of 2026
WP No. 11895 of 2026
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER OF REFERENCE DATED
30.07.2024 BEARING NO.95(FOC/40)2024-B4 ISSUED BY R2
WHICH IS AT ANNEXURE-E TO THIS PETITION AND CALL FOR
RECORDS IN THE ORDER OF REFERENCE NO. 95(FOC/80)2024-
ND
B4 FROM THE 2 RESPONDENT AND PASS SUCH OTHER
ORDERS WHICH THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE PETITIONS, COMING ON FOR ORDERS , THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
ORAL ORDER
1. The petitioner-Institution has filed these writ
petitions challenging the orders dated 30.07.2024
(impugned in W.P. Nos. 11889/2026 and 11895/2026 at
Annexure-E) and the order dated 20.11.2025 (impugned
in W.P. No. 11870/2026 at Annexure-H), passed by
respondent No. 2, whereby the disputes raised by the
workmen have been referred to the Central Government
Industrial Tribunal-cum-Labour Court, Bengaluru (for
short, “the Labour Court”), for adjudication.
2. The brief facts of the case are that the petitioner
engaged the services of respondent No. 4, namely, M/s.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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Sree Vinayaka Enterprises and Facility, for the purpose of
engaging contract labourers under the Contract Labour
(Regulation and Abolition) Act, 1970. Respondent No. 4 is
a registered contractor, whereas respondent No. 3 is a
Workers’ Union. The workmen, namely, Ms. K. Rekha, Mr.
Y. V. Shivakumar and Ms. Thenmozhi, were working in the
petitioner-Institution through respondent No. 4. According
to the petitioner, their payment of salaries and service
conditions were governed by respondent No. 4, and there
existed no employer-employee relationship between the
petitioner and the said workmen. It is the case of the
petitioner that, upon certain serious allegations being
made against the said workmen, the petitioner brought
the same to the notice of respondent No. 4, which, in turn,
terminated their services. Aggrieved by the termination,
respondent No. 3-Union raised respective industrial
disputes before respondent No. 2. The petitioner contends
that respondent No. 3-Union has no locus standi to raise
disputes concerning the workmen employed by respondent
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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No. 4. Respondent No. 2, by the impugned orders,
referred the disputes to the Labour Court for adjudication.
Aggrieved by the said orders, the petitioner has
approached this Court.
3. Learned counsel appearing for the petitioner
contends that the workmen were appointed by respondent
No. 4 and that their salaries were also paid by respondent
No. 4. Therefore, according to the petitioner, respondent
No. 4 alone was competent to terminate their services. It
is submitted that there is no employer-employee
relationship between the petitioner and consequently, the
said workmen through respondent No. 3-Union could not
have sought a reference against the petitioner. He further
submits that respondent No.2, without properly
considering this aspect, referred the disputes to the
Labour Court in exercise of its powers under Section 10 of
the Industrial Disputes Act, 1947 (for short, “the ID Act”).
In support of this contention, reliance is placed on the
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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judgment of the Hon’ble Supreme Court in Balwant Rai
Saluja & Anr. v. Air India Ltd. & Ors. , reported in
(2014) 9 SCC 407 .
Secondly, learned counsel submits that the workmen
were employees of respondent No.4 and that respondent
No.4 itself had terminated their services. It is further
contended that the workmen had tendered an apology
before respondent No.4 in respect of the allegations made
against them by the petitioner. According to the petitioner,
these circumstances demonstrate that it had no direct role
in terminating their services. It is further contended that
respondent No.2, while making the reference, has placed
the petitioner in a position where it is required to establish
whether the termination of the workmen was proper, legal
and justified, despite the absence of an employer-
employee relationship between them. Learned counsel
submits that, in the absence of such a relationship, the
question of the petitioner justifying the termination does
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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not arise and that the reference, insofar as it concerns the
petitioner, is without authority of law.
Lastly, learned counsel submits that, when the
absence of an employer-employee relationship is asserted
as a jurisdictional issue, the petitioner is entitled to
challenge the reference before this Court under Article 226
of the Constitution of India. In support of this contention,
reliance is placed on the judgment of the Hon’ble Supreme
Court in National Engineering Industries Ltd. v. State
of Rajasthan & Ors. , reported in 2001 LLJ 247 .
Accordingly, he sought for allowing the writ petitions.
4. Per contra, learned counsel appearing for the
respondent No.3-Union submits that, before the reference
authority, it has taken a specific contention that the
contract entered into between petitioner and the
respondent No.4 is a sham. Just to deprive the rights of
the workmen, they have entered into a contract. When the
contract itself is disputed, it becomes disputed question of
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HAREKOPPA THIMMANNA GOWDA
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facts, which has to be decided by the Labour Court. This
Court under Article 226 of the Constitution of India cannot
decide matters involving disputed questions of fact.
Learned counsel further contended that before the
Conciliation Authority, the petitioner-Management refused
to reinstate the workmen on the ground of misconduct.
Therefore, it is very clear that the petitioner has control
and supervision over the workmen. Therefore, the
respondent No.2 has rightly referred the dispute to the
Labour Court. She further contended that when there are
disputed question of facts involved, neither the Reference
Court nor this Court can adjudicate the same. It has to be
decided before the Labour Court. In support of her
contention, she has relied upon the judgment of the Apex
Court in the case of Premium Transmission Private
Limited v. State of Maharashtra and Others reported
in 2026 SCC Online SC 113 .
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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5. Learned counsel appearing for respondent No.4 has
submitted that the above said workmen, who are the
members of respondent No.3-Union, are the employees of
respondent No.4. The respondent No.4 has control over
the said workmen and it is the respondent No.4 who has
dismissed them from service. There is no employer and
employee relationship between the petitioner and
workmen. Therefore, he contended that reference made
against the petitioner is not sustainable.
6. Heard the learned counsel for the parties. Perused
the writ papers.
7. Respondent No.2, in exercise of the powers under
Section 10 of the ID Act, referred the disputes raised by
respondent No.3-Union to the Central Government
Industrial Tribunal-cum-Labour Court, Bengaluru, for
adjudication.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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8. The reference made against the workmen as
mentioned in the respective impugned orders read as
under:
In respect of NIMHANS v/s Ms.K.Rekha and 3 others
(WP No. 11889/2026)
“Whether the action of the management of NIMHANS,
Hosur Road, Bangalore in directing the contractor M/s
Vinayaka Enterprises to terminate the services of Ms. K
Rekha, Hospital Assistant with effect from 26.08.2022 is
proper, legal and justified? If not, to what relief the
workman is entitled to?.”
In respect of NIMHANS v/s Y.V.Shivakumar and 3 others (WP
No. 11870/2026)
“Whether there exists employer employee relationship
between the workman Shri Y V Shivakumar and the
management of NIMHANS? If yes, whether the
managements of NIMHANS and Sree Vinayaka
Enterprises and Facility Management Private Limited,
Contractor are justified in removing the worker? If not,
what relief the workman is entitled to?".
In respect of NIMHANS v/s Thenmozhi and 3 Others
(WP No.11895/2026)
“Whether the action of the management of NIMHANS,
Hosur Road, Bangalore in directing the contractor M/s
Sree Vinayaka Enterprises to terminate the services of
Ms. Thenmozhi, Hospital Assistant with effect from
26.08.2022 is proper, legal and justified? If not, to what
relief the workman is entitled to?.”
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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9. Respondent No.3-Union has taken a specific
contention before the respondent No. 2 that the said
workmen were working in the petitioner-Institution from
several years. They are directly controlled and supervised
by the petitioner-Institution’s Management. Just to deny
their rights, the petitioner has entered into a contract with
the respondent No.4. The said contract is a sham. This
aspect has been denied by the petitioner stating that they
are not the employees of the petitioner and the petitioner
has not terminated their service. It is the respondent
No.4, who has taken the said action.
10. The questions as to whether an employer-employee
relationship exists between the petitioner and the
workmen and whether the contract entered into between
the petitioner and respondent No. 4 is genuine, sham or
nominal are disputed questions of fact. Their
determination would require consideration of the relevant
evidence, including the circumstances relating to the
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appointment of the workmen, payment of their wages,
authority to take disciplinary action, power of termination,
and the extent of control and supervision exercised over
them. Such questions cannot ordinarily be conclusively
determined by the Government while referring the
disputes or even by this Court in exercise of its writ
jurisdiction under Article 226 of the Constitution of India,
particularly when the parties dispute the material facts and
the matter is amenable to adjudication by the Labour
Court.
11. Insofar as the judgment of the Hon’ble Supreme
Court in National Engineering Industries Ltd. v. State
of Rajasthan & Ors. (supra), relied upon by learned
counsel for the petitioner, is concerned, there is no dispute
regarding the jurisdiction of this Court to entertain a writ
petition challenging an order of reference, particularly
where the existence of an industrial dispute or the
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HAREKOPPA THIMMANNA GOWDA
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jurisdiction of the Industrial Tribunal is questioned..
Paragraph 26 is relevant and same reads as under:
“26. It will be thus seen that High Court has jurisdiction
to entertain a writ petition when mere is allegation that
there is no industrial dispute and none apprehended
which could be subject matter of reference for
adjudication to the Industrial Tribunal under Section 10 of
the Act, Here it is a question of jurisdiction of the
Industrial Tribunal, which could be examined by the High
Court in its writ jurisdiction. It is the existence of the
industrial tribunal which would clothe the appropriate
Government with power to make the reference and the
Industrial Tribunal to adjudicate it. If there is no industrial
dispute in existence or apprehended appropriate
government lacks power make any reference. A
settlement of dispute between the parties themselves is
to be preferred, where it could be arrived at, to industrial
adjudication, as the settlement is likely to lead to more
lasting peace then an award. Settlement is arrived at by
the free will of the parties and is a pointer to there being
goodwill between them. When there is a dispute that the
settlement is not bona fide in nature or that it has been
arrived at on account of fraud, misrepresentation or
concealment of facts or even corruption and other
inducements it could be subject matter of yet another
industrial dispute which an appropriate Government may
refer for adjudication after examining the allegations as
there is an underlying assumption that the settlement
reached with the help of the Conciliation Officer must be
fair and reasonable. A settlement which is sought to be
impugned has to be scanned and scrutinized. Sub-
sections (1) and (3) of section 18 divide settlements into
two categories, namely, (1) those arrived at outside the
conciliation proceedings and (2) those arrived at in the
course of conciliation proceedings. A settlement which
belongs to the first category has limited application in
that it merely binds the parties to the agreement but the
settlement belonging to the second category has
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HAREKOPPA THIMMANNA GOWDA
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extended application since it is binding on all the parties
to the industrial disputes, to all others who were
summoned to appear in the conciliation proceedings and
to all persons employed in the establishment or part of
the establishment, as the case may be, to which the
dispute related on the date of the dispute and to all
others who joined the establishment thereafter, A
settlement arrived at in the course of conciliation
proceedings with a recognized majority union will be
binding on all workmen of the establishment, even those
who belong to the minority union which had objected to
the same. Recognized union having majority of members
is expected to protect the legitimate interest of labour
and enter into a settlement in the best interest of labour.
This is with the object to uphold the sanctity of
settlement reached with the active assistance of the
Conciliation Officer and to discourage an individual
employee or minority union from scuttling the settlement.
When a settlement is arrived at during the conciliation
proceedings is binding on the members of the workers'
union as laid down by section 18(3) (d) of the Act . It
would ipso facto bind all the existing workmen who are all
parties to the industrial dispute and who may not be
members of Unions that are signatories to such
settlement under section 12(3) of the Act Act is based on
the principle of collective bargaining for resolving
Industrial disputes and for maintaining industrial peace.
"This principle of industrial democracy is the bedrock of
the Act", as pointed out in the case of P. Virudhanchalam
& Ors. v. Management of Lotus Mills & Anr., [1998] 1 SCC
650. In all these negotiations based on collective
bargaining individual workman necessarily records to the
background Settlements will encompass all the disputes
existing at the time of the settlement except those
specifically left out.”
12. In the present case, the petitioner disputes the
existence of an employer-employee relationship between
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HAREKOPPA THIMMANNA GOWDA
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itself and the workmen, and contends that respondent No.
4 alone employed the workmen and terminated their
services. Respondent No. 3-Union, on the other hand,
contends that the contractual arrangement between the
petitioner and respondent No. 4 is sham and nominal, and
that the petitioner exercised direct control and supervision
over the workmen. These rival contentions raise disputed
questions of fact which require adjudication on the basis of
evidence. The Labour Court is the appropriate forum to
examine the nature of the contractual arrangement and
determine whether the workmen were, in substance,
employees of the petitioner.
13. In Balwant Rai Saluja & Anr. v. Air India Ltd. &
Ors. (supra), relied upon by learned counsel for the
petitioner, the Hon’ble Supreme Court, at paragraph 61,
discussed the relevant factors to be considered in
determining the existence of an employer-employee
relationship. The said paragraph reads as follows:
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HAREKOPPA THIMMANNA GOWDA
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61. T hus, it can be concluded that the relevant factors
to be taken into consideration to establish an employer-
employee relationship would include, inter alia, (i) who
appoints the workers; (ii) who pays the
salary/remuneration; (iii) who has the authority to
dismiss; (iv) who can take disciplinary action; (v)
whether there is continuity of service; and (vi) extent of
control and supervision, i.e. whether there exists
complete control and supervision. As regards, extent of
control and supervision, we have already taken note of
the observations in Bengal Nagpur Cotton Mills case
(supra), the International Airport Authority of India case
(supra) and the NALCO case (supra).
14. In the present case, a finding on the existence or
otherwise, of an employer-employee relationship can be
arrived at only after the parties are afforded an
opportunity to adduce evidence and establish their
respective contentions. At this stage, this Court cannot
undertake a detailed examination of the disputed factual
issues or record a conclusive finding on the correctness of
the references made by respondent No. 2.
15. Learned counsel for respondent No. 3-Union has
placed reliance on the judgment of the Hon’ble Supreme
Court in Premium Transmission Private Limited v.
State of Maharashtra & Ors. (supra). In the said
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HAREKOPPA THIMMANNA GOWDA
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decision, the Hon’ble Supreme Court discussed the
distinction between a genuine contract and a sham
contract and the forum competent to adjudicate such
disputes. Paragraph 19 of the judgment, as relied upon by
the Union, reads as follows:
“19. For the present adjudication, we refer to the
ratio decidendi in SAIL (supra) on automatic absorption
and between genuine and sham contracts, which can be,
in a nutshell, stated thus:
On Automatic absorption
19.1 This Court examined the scheme of CLRA and held
that Section 10 is merely a regulatory and prohibitory
provision. It creates a bar on employing contract labour,
but it does not create a positive right of absorption for
the workmen.10 This Court settled that the prohibition of
contract labour under Section 10(1) does not imply an
automatic absorption of contract labour as direct
employees of the principal employer.
19.2 This Court observed that CLRA provides for specific
penal consequences for violating the Section 10
notification under Sections 23 and 25. Further, it was
held that when the legislature has provided penalties for
the violation, courts cannot read into the statute a
consequence that the legislature chose not to include.
19.3 The Court prospectively overruled the ratio settled in
Air India (Supra), wherein it was held that after
notification under Section 10 of the CLRA is issued, the
intermediary vanishes. A direct relationship is established
between the principal employer and employee.
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HAREKOPPA THIMMANNA GOWDA
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19.4 The Court observed that in support of the contention
of automatic absorption, the emphasis is placed on the
decision in Standard vacuum case, in which the Court had
directed absorption of contract labour as a consequence
of the prohibition of employment of contract labour. The
Court pointed out that no such principle has been laid in
that Judgment. Still, a mere direction extending the
prohibition of contractual labour from the date of
prohibition was to take effect to permit the existing
contract labour to continue for the rest of the contract
period.
Genuine vs. Sham contracts
19.5 The Court, while drawing a distinction between a
prohibited valid contract and a sham contract, held that,
on the one hand, if the contract is genuine but Section 10
of the CLRA notification subsequently prohibits contract
labour, the principal employer must stop employing
contract labour. The workers do not become employees.
The contractor releases them.
19.6 On the other hand, if the contract is found to be
sham, nominal, or a camouflage, in which the principal
employer controls the workers and pays their salaries,
but uses a contractor merely to bypass labour laws, then
the workers are de facto employees of the principal
employer.
19.7 Further, this Court opined that the dispute regarding
whether a contract is sham or genuine is a disputed
question of fact, and a writ Court should not direct
absorption without adjudicating it; an Industrial Court or
Labour Court must adjudicate this issue in a dispute
raised by the workmen.“
16. The aforesaid principles support the proposition that
the genuineness of a contract labour arrangement and the
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HAREKOPPA THIMMANNA GOWDA
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existence of an employer-employee relationship must be
determined on the basis of the facts and evidence of the
particular case. Where these matters are disputed, they
ordinarily require adjudication by the Labour Court.
17. In view of the principles laid down in the judgments
referred to above, this Court is of the opinion that the
disputes concerning the existence of an employer-
employee relationship and the genuineness of the contract
between the petitioner and respondent No. 4 require
adjudication by the Labour Court. The mere existence of
such disputed questions does not, by itself, warrant
interference with the orders of reference in exercise of the
writ jurisdiction by this Court.
18. The principal contention of the petitioner is that no
employer-employee relationship exists between the
petitioner and the workmen. On perusal of the terms of
reference, it is evident that, in the case of Mr. Y. V.
Shivakumar, respondent No. 2 has specifically framed an
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HAREKOPPA THIMMANNA GOWDA
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issue as to whether an employer-employee relationship
exists between the workman and the management of
petitioner-Institution. However, no such specific issue has
been framed in the cases relating to Ms. K. Rekha and Ms.
Thenmozhi, even though the existence of such a
relationship is specifically disputed by the petitioner. Under
Section 10(4) of the ID Act, adjudication is confined to the
points of dispute specified in the reference and matters
incidental thereto. In these two references, the
determination of the nature of the employment
relationship between the petitioner-Institution and the
workmen is integral to deciding the petitioner’s
responsibility for the termination.
19. In view of the above, the Labour Court is directed to
frame an additional issue in the cases relating to Ms. K.
Rekha and Ms. Thenmozhi as to whether an employer-
employee relationship exists between the petitioner and
the respective workmen. The Labour Court shall adjudicate
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HAREKOPPA THIMMANNA GOWDA
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the said issue on the basis of the pleadings and evidence
adduced by the parties along with other issues in
accordance with law.
20. With the above observation, the writ petitions are
disposed of.
All pending I.As., if any, are disposed of accordingly.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
(H.T. NARENDRA PRASAD)
JUDGE
DM
List No.: 1 Sl No.: 20