P&H HC Upholds Denial Of Helper’s Reinstatement Claim, Finding Agency Engagement And Payment Did Not Prove Direct Employment

Pardeep claimed that he was appointed as a Helper on 5 May 2015, worked until January 2017, and was orally terminated without notice or retrenchment compensation.

He sought reinstatement, continuity of service and back wages, alleging that he had completed 240 days of service.

The respondents disputed direct employment and maintained that, from September 2015 until 30 September 2016, Pardeep worked through an outsourcing agency; they also disputed that he had completed 240 days in the relevant period.

The Industrial Tribunal rejected his claim by award dated 3 February 2021, which he challenged under Articles 226 and 227 of the Constitution.

Section 25-F of the Industrial Disputes Act, 1947 protects a workman against retrenchment only if the continuous-service requirement under Section 25-B is met; under Section 25-B(2)(a), the workman must have actually worked for at least 240 days in the 12 months preceding the relevant date.

The initial burden of proving those days rests on the workman: Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25, and Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750.

The person asserting an employer–employee relationship bears the initial burden of proving it; that question is determined from the cumulative effect of the circumstances, and mere presence at an establishment or departmental supervision does not, by itself, prove direct employment or that an outsourcing arrangement is a sham: Workmen of Nilgiri Co-operative Marketing Society Ltd. v. State of Tamil Nadu, (2004) 3 SCC 514.

Under Articles 226 and 227, the High Court exercises supervisory, not appellate, jurisdiction and ordinarily does not interfere with supported factual findings absent perversity, absence of evidence, or patent legal or jurisdictional error.

The Court considered the separate engagement arrangements, the evidence that Pardeep had worked through the outsourcing agency and that payments were made to it, and his own admission that he received January 2017 salary from that agency.

It held that attendance records and evidence of departmental supervision established, at most, his presence and work at the establishment; they did not prove direct employment or that the agency arrangement was a sham.

The evidence therefore did not establish the requisite employer–employee relationship.

Nor did the attendance material establish 240 days of service with the respondent-department during the relevant 12-month period. Without proof of both the relationship and the statutory service requirement, a breach of Section 25-F was not made out.

The Tribunal’s findings were supported by the record and disclosed no basis for supervisory intervention.

It found no ground to interfere with the Tribunal’s award and dismissed the writ petition; pending miscellaneous applications were also disposed of.