C. Lakshmi Narayana

BEFORE THE PRESIDING OFFICER, LABOUR COURT, GUNTUR

PRSENT : SRI C. LAKSHMI NARAYANA, M.COM., LL.M.,

PRESIDING OFFICER

This the 23rd Day of May, 2016.

INDUSTRIAL DISPUTE No : 66/2011.

Between :

P. Sudhakar, S/o Venkata Subbaiah, Chinnacherukuru,

T.P Mandalam, Nellore District ............PETITIONER

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1) Hindusthan Coco Cola Beverages (P) Ltd., Gudipallipadu Village & Post, Nellore Rural Mandal, Rep. By Area General Manager, Hindusthan Coco Cola Beverages (P) Ltd., Atmakur Village, Mangalagiri Mandal, Guntur District.

2) P. Ramani Rao, Ravus Security & House Keeping Agency, 32-1-232/3, Sri Lakshmi Nilayam, Besides Sri Satya Lodge, Bowdara Road,

Vizagapatnam, Andhra Pradesh..........RESPONDENTS.

This petition coming before me upon perusing the material papers on record and upon hearing the arguments of Sri B. Srinivasa Rao, Advocate for petitioner and Sri G.V.S.Ganesh, Advocate for first respondent, and Sri D. Balaraju, Advocate for 2nd respondent, the court passed the following :

A W A R D

This application is filed by one P. Sudhakar, S/o Venkata Subbaiah under Sec. 2-A(2) of the Industrial Disputes Act seeking reinstatement with continuity of service, back wages and attendant benefits.

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The Petition averments, in brief, are as follows :

The petitioner was initially appointed by M/s Pinakani Beverages Ltd.,

Gudipallipadu from 28-9-1996 for loading of cases of full bottles of beverages and unloading the cases of empty bottles, sugar bags etc from the lorries. The petitioner & 19 others formed one batch working in one shift. The shift worked for 12 hours in a day i.e., from 8 AM to 8 PM. Another batch of equal number of workers worked in the 2nd shift ie., from 8 PM to 8 AM. The shifts changed once in a week. The petitioner and others were paid on piece rate basis and payments are made once in a week by the company. The first respondent took over the factory on 1-4-1999. The petitioner was continued by the first respondent. But he was not aware that from 1-4-2001 the salaries were paid by a contractor ie., the 2nd respondent. So the payment system changed from the direct payment to contractor payment. There was a written agreement Dt 1-4-2001 between the respondents valid for one year for loading and unloading work. On 31-12-2002, the petitioner and his other batch workers were told not to come from 1-1-2003 as their services were not required and they had engaged some other workers. The petitioner and others served Legal Notice to the first respondent with regard to change of their working conditions. The 2nd respondent without issuing Notice, Notice pay, or terminal benefits like Gratuity, retrenchment compensation, all off sudden terminated the services of the petitioner and others from 31-12-2002. The first respondent denied the relationship of employee and employer between the petitioner and others and the first respondent. The petitioner and others raised conciliation before the Deputy Commissioner of Labour, Guntur. The 2nd

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respondent was also impleaded in the conciliation proceedings and he contended that the petitioner and others resigned on 4-1-2003 enmass and the said resignation was accepted and petitioner and others received Rs 30,000/- towards Gratuity in token of full and final settlement. But the petitioner never resigned from the job and the alleged signatures or thumb impressions are forged and he never received any cheque for Rs. 30,000/-. As per letter of ACL, Nellore, the 2nd respondent does not have any contractor license and also not registered with the Labor

Department, Nellore until the petitioner and others transferred to the 2nd respondent. The 2nd respondent paid the wages from the date of taking over and also contributed to P.F && ESI till the petitioner and others were terminated on 31-12-2002. The bottling plant at Gudipallipadu Nellore District functioned till 11-2-2006 and the Unit was closed. The workers were transferred to different

Units. Since the petitioner has not resigned and never received Rs 30,000/- at the time of termination, the petitioner is entitled to compensation under Sec 25-F of the I.D Act and other terminal benefits. Therefore, the petitioner prayed for an

Order for terminal benefits.

The 1 st respondent filed counter with the following averments :

The petitioner was engaged by the 2nd respondent who is a licensed contractor under the provisions of the Contract Labour (Regulation & Abolition)

Act 1970. There exists no relationship of employer and employee between the first respondent and the petitioner. The present petition was totally outside the scope of the provisions of Sec 2-A of the I.D Act and therefore liable to be rejected

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in limini since the petitioner was not retrenched, dismissed or terminated employee. This court has no jurisdiction to grant relief against the first respondent since the petitioner was not engaged by the first respondent. When the petitioner was not the employee of this respondent, the question of termination, dismissal, discharge or retrenchment as contemplated under Sec 2-A of the I.D Act does not arise and consequently no application can be maintained against this respondent.

The first respondent Unit has been closed with effect from 11-2-2006 for business reasons and in view of closure of the establishment, the present dispute nothing survives for consideration by this Court and on this ground also, the present petition is liable to be closed. A group of persons numbering 22 who were employed by the 2nd respondent through authorized representative approached the conciliation Officer Cum Deputy Commissioner of Labour, Guntur and on receipt of Notice, this respondent attended and participated in the conciliation meetings and represented that the said 22 persons were never employed by this respondent directly but they were employed by the 2nd respondent ie., the contractor. It was further represented before the conciliation Officer that their wages are paid by the 2nd respondent and PF and ESI contributions were also remitted by the said 2nd respondent. The 2nd respondent also participated in the conciliation meetings and produced documents showing that the petitioners had tendered resignations which were accepted by the 2nd respondent by settling their accounts in full and final. As the conciliation proceedings ended in failure, the same was referred to Labour court.

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The said reference was numbered as I.D 105/2005. Admittedly, the 2nd respondent who was employed the petitioner and others cannot raise any dispute against the first respondent . The first respondent filed WP 22395/2007 on the file of Hon'ble High Court of Andhra Pradesh challenging the said Order of Reference and he same was admitted since the said dispute was not espoused by the workmen or any Union of the workmen of the first respondent company which is essential ingredient for the Industrial Dispute under Sec 2(k) of the I.D Act.

Further, the petitioners in I.D No 105/2005 filed claim statement admitting the closure of the bottling plant/factory of the first respondent but prayed for relief of reinstatement. After filing counter by the respondents in the above case, the petitioner withdraw the said I.D with a liberty to file applications under Sec 2-A(2) of the I.D Act.

This respondent denied the transfer of the petitioner to the 2nd respondent at any point of time and this respondent never engaged the petitioner at any point of time. The petitioner is not entitled to compensation and terminal benefits under Sec 25-F of the I.D Act. Therefore, this respondent prays to dismiss this petition against this respondent as Not maintainable.

The 2 nd respondent filed counter with the following averments :

The petitioner raised this dispute after nine years from the date of alleged termination Dated 31-12-2002 and hence this petition is barred by time and also belated and tale one and is liable to be dismissed. The petitioner and others raised conciliation before the Asst Commissioner of Labour, Nellore

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praying their services were terminated without following the procedure laid down under Sec 25-F of the I.D Act and the Government referred the said dispute to this court for adjudication by mentioning the parties and petitioner and others and the first respondent and the same was numbered as I.D 105/2005. Thus, as per the said reference, this respondent is not a necessary party since no relief is prayed against this respondent by the petitioner and others. This respondent and the first respondent filed their individual counters in the above I.D. The first respondent filed W.P No. 22395/2007 before the Hon'ble High Court questioning the said reference in I.D 105/2005 on the file of this court and got stayed as per Orders

Dated 25-4-2008 in WPMP No 29038/2007 pending the said Writ Petition before

the Hon'ble High Court. In the mean while, the petitioner with drawn the said I.D.

Again for the same reliefs in I.D 105/2005, the petitioner filed this I.D for terminal benefits with abnormal delay without any explanation for the said delay. Thus, the present dispute is hit by resjudicata. Further, this petition is a belated and stale one and also barred by time and is liable to be rejected. The Nature of activity of this respondent is that they used to supply work force ie security guards and workers for loading and unloading purpose to different organizations and companies.

Accordingly, this respondent got work order from the first respondent to supply workers for loading and unloading purposes in the first respondent's company premises for which both the respondents entered into an agreement on 24-11-2000.

For the said work, this respondent engaged the petitioner afresh for loading and unloading works and sent them to the first respondent. Accordingly, the petitioner worked in the first respondent company and this respondent paid wages for the

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period he worked. While so, the petitioner submitted resignation to this respondent on 4-1-2003. This respondent accepted the resignation of the petitioner and settled his account by paying Rs. 30,000/- towards Gratuity and other terminal benefits through cheque. The petitioner encashed the said check without any protest. Thus, it was proved that it is a case of resignation of the petitioner and not a case of termination as alleged by t he petitioner on 31-12-2002. As such, the question of violation of Sec 25-F of the I.D Act by this respondent does not arise. This respondent came to know that the petitioner herein engaged in some other establishments and got employment after he resigned to his job with this respondent. Further, the claims and contentions of the petitioner are untenable in law and also without any legal basis. The present petition is misconceived and unsustainable one and is liable to be dismissed. Therefore, this respondent prays to dismiss this petition without granting any relief to the petitioner.

Petitioner examined himself as PW1 and got marked Exs. P1 and P2 on his behalf. RW1 was examined on behalf of the first respondent and got marked Exs. R1 to R6. RW2 was examined on behalf of the 2nd respondent and got marked Exs. R7 to R13. Heard both sides.

The Point that arise for consideration in this case is :

Whether, the petitioner is entitled to terminal benefits as prayed for ?

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Point :-The specific case of the petitioner is that he was employed originally at Gudipallipadu premises and worked from 28-9-1996 that he along with some others as a batch worked that they all were paid on piece rate basis once in a week and that R1 company took over the factory on 1-4-99. The further case is that he had no knowledge about payment of salaries by R2 from 1-4-2001 about transferring them to R2 and about written agreement entered into by the

Transferee i.e., R1 and R2 on 1-4-2001.As per the case of the petitioner, he was told on 31-12-2002 not to come to duty from 1-1-2003 that he terminated on 31-12-2002 that a legal notice dt. 2-5-2003 was issued that a false reply

dt. 26-6-2003 was given and that he along with other batch mates made

conciliation efforts. The further case is that the respondents took the plea that he submitted resignation letter on 4-1-2003 that the same was accepted that payment of Rs. 30,000/- was made towards gratuity in token of full and final settlement.

The clear case of the petitioner is that no payment was made that no cheque was received and that he did not sign or affixed thumb impression on any paper. The petitioner claimed that he is entitled for compensation U/s.25F of the I.D.Act. The

First Respondent questioned the very maintainability of the petition and pleaded that the petitioner is not a workman as defined U/s.2(s) of the I.D.Act that there is no employee and employer relationship with the petitioner and that the prayer made in the petition is out of the scope of Section 2A of the I.D.Act. The further case is that R1 factory was closed on 11-2-06 R2 was the contractor and R2 was entrusted with the work of loading and unloading vide agreement dt. 24-11-2000.

With regard to the Conciliation proceedings, it was pleaded that Reference was

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made in I.D. 105/05 that it was challenged by Writ petition in WP 22395/2007 that later I.D.105/05 was withdrawn with liberty to file separate petitions. The specific case of the Second Respondent is that the petitioner submitted Resignation on 4-1-03 and that it was accepted by making payment of Rs.30,000/- . The Second

Respondent took the further pleas that the petition is belated one since filed after lapse of 9 years from the date of alleged termination that it is liable to be dismissed and that no relief was prayed for by the petitioner in the Reference as against the Second Respondent. The ultimate case is that the petition is hit by

Resjudicata and barred by limitation.

To substantiate his case, the petitioner himself came to the box to give evidence as PW.1 by filing an affidavit in lieu of his examination-in-chief reiterating the contents of the petition and specifically stating that he is entitled to all the terminal benefits in view of termination contrary to Section 25 F of the I.D.

Act. Exs. P1 and P2 are the copies of EPF slips for the years 2000-01 and 2001-02 respectively marked through PW1. During the course cross examination,

PW1 admitted that as per Exs. P1 and P2 documents the 2nd respondent is shown as employer and that there is no letter available with him to show that he worked in the 1st respondent company. He admitted that the 1st respondent company was already closed and is not existence. He categorically denied the suggestions that he worked under the 2nd respondent that there is no employee and employer relationship between himself and the 1st respondent that he had already taken his

PF amount and other amounts and that falsely the case is filed. It is elicited from

PW1 that he took the plea in the reference that the 2nd respondent took his resignation forcibly.

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Sri M. Pardha Saradhi, the Manager (HR) worked in Gudipallipadu plant from January, 2001 till June, 2003 gave evidence as RW1 by filing an affidavit in lieu of his examination in chief by iterating the contents of the counter of R1and specifically stating that there was no employer-employee relationship exists between the petitioner and R1. Exs. R1 to R6 were marked through RW1.

Ex. R1 is the copy of certificate of Registration of the 1st respondent

dt. 28-03-2000 of Gudipallipadu Plant. Ex. R2 is the copy of license

dt. 17-03-2001 of the 2nd respondent which will remain in force upto 16-03-2002.

Ex. R3 is the copy of agreement dt. 01-04-2001 in between the Respondent Nos.

1 and 2. Ex. R4 is the copy of Form-XXV submitted to ACL, Nellore along with covering letter. Ex. R5 is the copy of letter dt. 04-02-2004 of R1 sent to DCL,

Guntur informing that the petitioner was not employed directly ever since it had taken over the business. Ex. R6 is the copy of letter dt. 11-03-2004 of R1 sent to

DCL, Guntur informing that the petitioner and his batchmates submitted their resignations after settlement of their PF accounts. During the course of cross examination, RW1 stated that the loading and unloading workers were not the permanent employees and hence no such worker was taken by the 1st respondent.

RW1 deposed that the contract work to supply the loading and unloading workers was given to the 2nd respondent in the year 2000 and the contractor usually supplied the workers as per the requisitions given day wise or week wise. He denied the suggestion that R1 company supervised the work of the workers engaged by the contractor. He stated that the contractor himself supervised their work. He specifically stated that the information given by the 2nd respondent was to the effect that all the workers under the contract were submitted resignations at a time.

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On behalf of the 2nd respondent, Sri B. Venkata Rama Rao, the

Accountant of the 2nd respondent firm gave evidence as RW2 by filing an affidavit in lieu of his examination in chief by reiterating the contents of the counter of R2 and specifically stating that the petition is not maintainable and liable to be dismissed. Exs. R7 to R13 were marked through him. Ex. R7 is the copy of

Authorization letter dt. 09-04-2016 authorizing him to give evidence in the case.

Ex. R8 is the resignation letter of the petitioner dt. 04-01-2003. It shows that the petitioner, who was attending the work of loading and unloading for the three years prior to its date resigning to the job since he was unable to attend the works.

Ex. R9 is the Releaving letter dt. 05-01-2003 and it shows that the resignation of the petitioner was accepted w.e.f., 05-01-2003 and Gratuity amount of Rs.30,000/- was being released. Ex. R10 is the copy of postdated cheque for Rs.30,000/-

dt. 06-01-2003. Ex. R11 is the copy of letter dt. 05-01-2003 of the petitioner

requesting the 2nd respondent to make payment by way of cash instead of cheque since he was not having Bank Account. Ex. R12 is the voucher dt. 05-01-2003 showing that an amount of Rs.30,000/- was paid to the petitioner as Gratuity towards full and final settlement. Ex. R13 is the copy of the petition filed before the Conciliation Officer, Nellore by the petitioner and 21 others for resolving the dispute against the 1st respondent. During the course of cross examination RW2 specifically stated that the 2nd respondent obtained license from the Labour

Department in the year 2001 and supplying the workers to the 1st respondent since 01-04-2001. He stated that the 1st respondent company called for tenders for supply of workers but oral intimation was given to the 2nd respondent to supply the

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workers. He admitted that appointment letters were not given to the workers. He expressed his ignorance as to the payments made towards EPF contributions to the petitioner and others. While answering a specific question, RW2 stated that though the workers were supplied to the R1 company the supervision of the works was made by R2. He denied the specific suggestion that the signatures of the workers were taken on blank papers and that the resignation letters were fabricated. It is elicited from RW2 that whenever payment were made covering more than Rs. 50,000/- R2 used to issue cheques only.

As verified from the pleadings and the evidence let in before the court, the facts which are not in dispute are that the petitioner and some others attended loading and unloading works in R1 company when they were supplied by R2

Agency. The main question to be decided is whether there was employee and employer relationship in between the petitioner and R1 company. The learned counsel for the 1st respondent vehemently argued that unless the petitioner establish that he was having master and servant relationship with R1 company the petition is not maintainable. He cited several decisions of the Hon'ble Apex Court and other Hon'ble High Courts to substantiate his argument that the workmen employing by the 2nd respondent can not be the workers of the 1st respondent company. The Hon'ble Apex Court discussed detailedly the distinction between the contract of service and contract for service in the case of Dharangadhara

Chemical Works Limited and State of Saurashtra and others reported in 1957

I LLJ page 477. It was observed that there must exist the right in the master to

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supervise and control the work done by the servant not only in the matter of directing what work is to be done to establish that there was master and servant relationship. In another decision reported in 1985 II LLJ page 4 (The workmen of the Food Corporation of India Vs. M/s. Food Corporation of India) the Hon'ble

Apex Court held that the workmen employed by the contractor can not be the workmen of third party who engages the contractor to accomplish a particular reason and thereby no master and servant relationship exists. Similar view was taken by the Hon'ble Apex Court in the case of Employers in relation to the

Management of the Reserve Bank of India Vs. their workmen reported in AIR 1996 SC 1241. A clear cut distinction between a contractor and a workman was drawn by the Hon'ble Apex Court in the case of Chintaman Rao Vs. State of

Madyapradesh reported in AIR 1958 SC 388. If the analogy taken in all the referred to decisions is followed, it is to be doubted whether such master and servant relationship was in the existence in between the petitioner and R1 company.

The next point on which must argumentation was made by the Learned counsel for the R1 company is about maintainability of the application U/s. 2 A of the I.D. Act. The argument is that the adjudication U/s. 2 A is prescribed only as to the mode of discharge, dismissal, retrenchment or termination and that the question whether the contract labour was a ruse or camouflage can not be raised

U/s. 2 A by the individual contract labour. The said view was taken by the Hon'ble

High Court of AP in the case of Oil and Natural Gas Corporation Limited, KG

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Project, Rajhmandry Vs. N. Satyanarayana and others reported in 2003 (3) ALD page 711. The court held that such workers can only approach U/s. 2 (K) to reference U/s. 10 (1) of the I.D. Act. The nature and relative scope of the disputes that may be raised U/s. 2 (A) of the I.D. Act and 2 (K) of the I.D. Act was decided in the case of Bharath Heavy Electricals Limited Vs. Anil and others by the

Hon'ble Apex Court reported in (2007) I SCC page 610. It was observed that

Section 2 A of the I.D. Act contemplates nothing more than to declare an individual dispute to be an Industrial Dispute and that it does not amend the defication of Industrial Dispute set out in Section 2 K of the Industrial Disputes

Act, 1947. What was observed by the court was that Section 2 A does not cover every type of dispute between an individual workman and his employer. To support the argument that dispute relating to a person who is not a workman is not an Industrial Dispute, the learned counsel for the 1st respondent relied on the decision of the Hon'ble Apex Court given in the case of workman of Dimakuchi

Tea Estates (Assam Chah Karmachari Sangha) Vs. Dimakuchi Tea Estates reported in 1958 I LLJ SC page 500. It was observed in the decision that the dispute relating to a person who is not a workman within the meaning of Section 2 (S) of the I.D. Act is not an Industrial Dispute and it may be a dispute within

Section 2 (K) of the I.D. Act. In the present case, the prayer made by the petitioner is to pass an order in respect of all the terminal benefits pleading that the termination is contrary to Section 25 F of the I.D. Act. It is not the request of the petitioner to order reinstatement. Unless the employee and employer relationship in between the petitioner and R1 is established, the question of petitioner taking

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shelter U/s. 25 F of the I.D. Act does not arise. The evidence and material available in the case only discloses that the petitioner was supplied by the 2nd respondent, who got an agreement with the 1st respondent to supply loading and unloading workers. In such case, the maintainability of the application U/s. 2 A of the I.D. Act against the 1st respondent is to be doubted.

The learned counsel for the petitioner vehemently argued that the very theory of resignation setup by the respondents is false that no payment made as pleaded and that the respondents have no right to alter the mode of payment without knowledge of the petitioner and without giving notice U/s. 9 A of the I.D.

Act. The documents filed by the respondent are clinchingly establishing that the petitioner submitted resignation letter and received the Gratuity amount in cash.

The documents Exs. R8 and R11 can not be brushed aside lightly. The petitioner made a request through Ex. R11 to make payment by cash instead of cheque towards full and final settlement. Ex. R10 cheque number is also mentioned in

Ex. R11 document. With the above documents and other documents relied on by the respondent, it is to be concluded that the petitioner had his final settlement with R2. To claim that he was the employee of R1 company, the petitioner relied on Exs. P1 and P2 documents which are only EPF slips. Admittedly, the 2nd respondent is shown in both Exs. P1 and P2 documents as the employer. Even if evidence is available to show that there was contribution to ESI in the name of workman the same can not be taken as employee and employer relationship was established. The Hon'ble High Court of AP in the case of Deccan Chronicle

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(Represented by its Managing Partner T. Venkatram Reddy) Vs. G. Pedda Reddy and others reported in 2004 (3) LLN page 916 has observed that the contribution to Employees State Insurance in the name of workman can not shown employer- employee relationship. Therefore, the documents Exs. P1 and P2 will not help the petitioner's case.

The another argument advanced on behalf of the petitioner is that the 1st respondent got obligation to employ the Labour of the Transferor company and therefore the petitioner who joined originally in the transferor company can make claim. The obligations of a company who got transfer from another company was discussed by the Hon'ble High Court of AP in the case of Bharath Coco-Cola

Bottling South East Private Limited, Vijayawada Vs. the Government of AP and others reported in 2002 (1) ALD page 103 (DB). Facts involved in both the present case and the case cited have got some similarities and in both the cases the

Coco-Cola Bottling Company was involved. There was transfer of a company in the cited decision by sale to another company. In the cited case the matter was decided when reference was made U/s. 10 (1) ( c ) and Section 10 D of the

Industrial Disputes Act. The Hon'ble Division Bench has observed that there is no obligation on the transferee company to employ the Labour of the Transferor company since no relationship of master and servant exists between transferee company and the erstwhile employees of the transferor company. The court held that the reference itself is not maintainable. Therefore, the petitioner has no claim against R1 even it is a fact that R1 company taken over the plant situated at

Gudipallipadu of Nellore District.

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On a careful consideration of all the facts and circumstances, it is to be held that the application U/s. 2 A of the I.D. Act is not maintainable against the 1st respondent. The very master and servant relationship in between the petitioner and R1 company was not established by the petitioner. Further, as rightly pointed out by the learned counsel for the 2nd respondent the approach of the petitioner is belated one. The contention of the 2nd respondent that the petitioner had submitted resignation letter and had full and final settlement by receiving Rs.30,000/- to be taken as established. In such circumstances, the request of the petitioner is not maintainable against both the respondents. Thereby, the petition will fail and the point to be decided against the petitioner.

In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in the open court on this the 23rd day of May, 2016.

Sd/-XXXX

PRESIDING OFFICER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent :

PW1 : P. Sudhakar RW1 : M. Pardha Saradhi. RW2 : B. Venkata Rama Rao.

DOCUMENTS MARKED FOR PETITIONER

Ex. P1 : Copy of EPF slip for the year 2000-01.

Ex. P2 : Copy of EPF slip for the year 2001-02.

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DOCUMENTS MARKED FOR RESPONDENTs

Ex. R1 : Copy of Certificate of Registration of the 1st respondent dt. 28-03-2000.

Ex. R2 : Copy of license dt. 17-03-2001 of the 2nd respondent.

Ex. R3 : Copy of Agreement dt. 01-04-2001 in between the Respondent Nos. 1 and 2.

Ex. R4 : Copy of Form-XXV submitted to ACL, Nellore along with covering letter.

Ex. R5 : Copy of letter dt. 04-02-2004 of R1 sent to DCL, Guntur.

Ex. R6 : Copy of letter dt. 11-03-2004 of R1 sent to DCL, Guntur.

Ex. R7 : Copy of Authorization letter dt. 09-04-2016.

Ex. R8 : Resignation letter dt. 04-01-2003.

Ex. R9 : Resignation acceptance and relieving letter dt. 05-01-2003.

Ex. R10 : Copy of the post dated cheque for Rs.30,000/- dt. 06-01-2003.

Ex. R11 : Request letter dt. 05-01-2003.

Ex. R12 : Receipt of full and final settlement of Gratuity dt. 05-01-2003.

Ex. R13 : Copy of the petition filed before the Conciliation Officer, Nellore.

Sd/-XXXX

PRESIDING OFFICER

// TRUE COPY//

PRESIDING OFFICER

LABOUR COURT.

BEFORE THE PRESIDING OFFICER, LABOUR COURT, GUNTUR

PRSENT : SRI C. LAKSHMI NARAYANA, M.COM., LL.M.,

PRESIDING OFFICER

This the 23rd Day of May, 2016.

INDUSTRIAL DISPUTE No : 65/2011.

Between :

K.C Penchalaiah, S/o Penchalaiah, Chinnacherukuru,

T.P Mandal, Nellore District............PETITIONER

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1) Hindusthan Coco Cola Beverages (P) Ltd., Gudipallipadu Village & Post, Nellore Rural Mandal, Rep. By Area General Manager, Hindusthan Coco Cola Beverages (P) Ltd., Atmakur Village, Mangalagiri Mandal, Guntur District.

2) P. Ramani Rao, Ravus Security & House Keeping Agency, 32-1-232/3, Sri Lakshmi Nilayam, Besides Sri Satya Lodge, Bowdara Road,

Vizagapatnam, Andhra Pradesh..........RESPONDENTS

This petition coming before me upon perusing the material papers on record and upon hearing the arguments of Sri B. Srinivasa Rao, Advocate for petitioner and Sri G.V.S.Ganesh, Advocate for first respondent, and Sri D. Balaraju, Advocate for 2nd respondent, the court passed the following :

A W A R D

This application is filed by one K.C Penchalaiah, S/o Penchalaiah under Sec. 2-A(2) of the Industrial Disputes Act seeking reinstatement with continuity of service, back wages and attendant benefits.

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The Petition averments, in brief, are as follows :

The petitioner was initially appointed by M/s Pinakani Beverages Ltd.,

Gudipallipadu from 29-9-1995 for loading of cases of full bottles of beverages and unloading the cases of empty bottles, sugar bags etc from the lorries. The petitioner & 19 others formed one batch working in one shift. The shift worked for 12 hours in a day i.e., from 8 AM to 8 PM. Another batch of equal number of workers worked in the 2nd shift ie., from 8 PM to 8 AM. The shifts changed once in a week. The petitioner and others were paid on piece rate basis and payments are made once in a week by the company. The first respondent took over the factory on 1-4-1999. The petitioner was continued by the first respondent. But he was not aware that from 1-4-2001 the salaries were paid by a contractor ie., the 2nd respondent. So the payment system changed from the direct payment to contractor payment. There was a written agreement Dt 1-4-2001 between the respondents valid for one year for loading and unloading work. On 31-12-2002, the petitioner and his other batch workers were told not to come from 1-1-2003 as their services were not required and they had engaged some other workers. The petitioner and others served Legal Notice to the first respondent with regard to change of their working conditions. The 2nd respondent without issuing Notice, Notice pay, or terminal benefits like Gratuity, retrenchment compensation, all off sudden terminated the services of the petitioner and others from 31-12-2002. The first respondent denied the relationship of employee and employer between the petitioner and others and the first respondent. The petitioner and others raised conciliation before the Deputy Commissioner of Labour, Guntur. The 2nd

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respondent was also impleaded in the conciliation proceedings and he contended that the petitioner and others resigned on 4-1-2003 enmass and the said resignation was accepted and petitioner and others received Rs 30,000/- towards Gratuity in token of full and final settlement. But the petitioner never resigned from the job and the alleged signatures or thumb impressions are forged and he never received any cheque for Rs. 30,000/-. As per letter of ACL, Nellore, the 2nd respondent does not have any contractor license and also not registered with the Labor

Department, Nellore until the petitioner and others transferred to the 2nd respondent. The 2nd respondent paid the wages from the date of taking over and also contributed to P.F && ESI till the petitioner and others were terminated on 31-12-2002. The bottling plant at Gudipallipadu Nellore District functioned till 11-2-2006 and the Unit was closed. The workers were transferred to different

Units. Since the petitioner has not resigned and never received Rs 30,000/- at the time of termination, the petitioner is entitled to compensation under Sec 25-F of the I.D Act and other terminal benefits. Therefore, the petitioner prayed for an

Order for terminal benefits.

The 1 st respondent filed counter with the following averments :

The petitioner was engaged by the 2nd respondent who is a licensed contractor under the provisions of the Contract Labour (Regulation & Abolition)

Act 1970. There exists no relationship of employer and employee between the first respondent and the petitioner. The present petition was totally outside the scope of the provisions of Sec 2-A of the I.D Act and therefore liable to be rejected in limini since the petitioner was not retrenched, dismissed or terminated

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employee. This court has no jurisdiction to grant relief against the first respondent since the petitioner was not engaged by the first respondent. When the petitioner was not the employee of this respondent, the question of termination, dismissal, discharge or retrenchment as contemplated under Sec 2-A of the I.D Act does not arise and consequently no application can be maintained against this respondent.

The first respondent Unit has been closed with effect from 11-2-2006 for business reasons and in view of closure of the establishment, the present dispute nothing survives for consideration by this Court and on this ground also, the present petition is liable to be closed. A group of persons numbering 22 who were employed by the 2nd respondent through authorized representative approached the conciliation Officer Cum Deputy Commissioner of Labour, Guntur and on receipt of Notice, this respondent attended and participated in the conciliation meetings and represented that the said 22 persons were never employed by this respondent directly but they were employed by the 2nd respondent ie., the contractor. It was further represented before the conciliation Officer that their wages are paid by the 2nd respondent and PF and ESI contributions were also remitted by the said 2nd respondent. The 2nd respondent also participated in the conciliation meetings and produced documents showing that the petitioners had tendered resignations which were accepted by the 2nd respondent by settling their accounts in full and final. As the conciliation proceedings ended in failure, the same was referred to Labour court.

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The said reference was numbered as I.D 105/2005. Admittedly, the 2nd respondent who was employed the petitioner and others cannot raise any dispute against the first respondent . The first respondent filed WP 22395/2007 on the file of Hon'ble High Court of Andhra Pradesh challenging the said Order of Reference and he same was admitted since the said dispute was not espoused by the workmen or any Union of the workmen of the first respondent company which is essential ingredient for the Industrial Dispute under Sec 2(k) of the I.D Act.

Further, the petitioners in I.D No 105/2005 filed claim statement admitting the closure of the bottling plant/factory of the first respondent but prayed for relief of reinstatement. After filing counter by the respondents in the above case, the petitioner withdraw the said I.D with a liberty to file applications under Sec 2-A(2) of the I.D Act.

This respondent denied the transfer of the petitioner to the 2nd respondent at any point of time and this respondent never engaged the petitioner at any point of time. The petitioner is not entitled to compensation and terminal benefits under Sec 25-F of the I.D Act. Therefore, this respondent prays to dismiss this petition against this respondent as Not maintainable.

The 2 nd respondent filed counter with the following averments :

The petitioner raised this dispute after nine years from the date of alleged termination Dated 31-12-2002 and hence this petition is barred by time and also belated and tale one and is liable to be dismissed. The petitioner and others raised conciliation before the Asst Commissioner of Labour, Nellore

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praying their services were terminated without following the procedure laid down under Sec 25-F of the I.D Act and the Government referred the said dispute to this court for adjudication by mentioning the parties and petitioner and others and the first respondent and the same was numbered as I.D 105/2005. Thus, as per the said reference, this respondent is not a necessary party since no relief is prayed against this respondent by the petitioner and others. This respondent and the first respondent filed their individual counters in the above I.D. The first respondent filed W.P No. 22395/2007 before the Hon'ble High Court questioning the said reference in I.D 105/2005 on the file of this court and got stayed as per Orders

Dated 25-4-2008 in WPMP No 29038/2007 pending the said Writ Petition before

the Hon'ble High Court. In the mean while, the petitioner with drawn the said I.D.

Again for the same reliefs in I.D 105/2005, the petitioner filed this I.D for terminal benefits with abnormal delay without any explanation for the said delay. Thus, the present dispute is hit by resjudicata. Further, this petition is a belated and stale one and also barred by time and is liable to be rejected. The Nature of activity of this respondent is that they used to supply work force ie security guards and workers for loading and unloading purpose to different organizations and companies.

Accordingly, this respondent got work order from the first respondent to supply workers for loading and unloading purposes in the first respondent's company premises for which both the respondents entered into an agreement on 24-11-2000.

For the said work, this respondent engaged the petitioner afresh for loading and unloading works and sent them to the first respondent. Accordingly, the petitioner worked in the first respondent company and this respondent paid wages for the

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period he worked. While so, the petitioner submitted resignation to this respondent on 4-1-2003. This respondent accepted the resignation of the petitioner and settled his account by paying Rs. 30,000/- towards Gratuity and other terminal benefits through cheque. The petitioner encashed the said check without any protest. Thus, it was proved that it is a case of resignation of the petitioner and not a case of termination as alleged by t he petitioner on 31-12-2002. As such, the question of violation of Sec 25-F of the I.D Act by this respondent does not arise. This respondent came to know that the petitioner herein engaged in some other establishments and got employment after he resigned to his job with this respondent. Further, the claims and contentions of the petitioner are untenable in law and also without any legal basis. The present petition is misconceived and unsustainable one and is liable to be dismissed. Therefore, this respondent prays to dismiss this petition without granting any relief to the petitioner.

Petitioner examined himself as PW1 and got marked Exs. P1 and P2 on his behalf. RW1 was examined on behalf of the first respondent and got marked Exs. R1 to R6. RW2 was examined on behalf of the 2nd respondent and got marked Exs. R7 to R13. Heard both sides.

The Point that arise for consideration in this case is :

Whether, the petitioner is entitled to terminal benefits as prayed for ?

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Point :-The specific case of the petitioner is that he was employed originally at Gudipallipadu premises and worked from 29-09-1995 that he along with some others as a batch worked that they all were paid on piece rate basis once in a week and that R1 company took over the factory on 1-4-99. The further case is that he had no knowledge about payment of salaries by R2 from 1-4-2001 about transferring them to R2 and about written agreement entered into by the

Transferee i.e., R1 and R2 on 1-4-2001.As per the case of the petitioner, he was told on 31-12-2002 not to come to duty from 1-1-2003 that he terminated on 31-12-2002 that a legal notice dt. 2-5-2003 was issued that a false reply

dt. 26-6-2003 was given and that he along with other batch mates made

conciliation efforts. The further case is that the respondents took the plea that he submitted resignation letter on 4-1-2003 that the same was accepted that payment of Rs. 30,000/- was made towards gratuity in token of full and final settlement.

The clear case of the petitioner is that no payment was made that no cheque was received and that he did not sign or affixed thumb impression on any paper. The petitioner claimed that he is entitled for compensation U/s.25F of the I.D.Act. The

First Respondent questioned the very maintainability of the petition and pleaded that the petitioner is not a workman as defined U/s.2(s) of the I.D. Act that there is no employee and employer relationship with the petitioner and that the prayer made in the petition is out of the scope of Section 2A of the I.D. Act. The further case is that R1 factory was closed on 11-2-06 R2 was the contractor and R2 was entrusted with the work of loading and unloading vide agreement dt. 24-11-2000.

With regard to the Conciliation proceedings, it was pleaded that Reference was

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made in I.D. 105/05 that it was challenged by Writ petition in WP 22395/2007 that later I.D.105/05 was withdrawn with liberty to file separate petitions. The specific case of the Second Respondent is that the petitioner submitted Resignation on 4-1-03 and that it was accepted by making payment of Rs.30,000/- .The Second

Respondent took the further pleas that the petition is belated one since filed after lapse of 9 years from the date of alleged termination that it is liable to be dismissed and that no relief was prayed for by the petitioner in the Reference as against the Second Respondent. The ultimate case is that the petition is hit by

Resjudicata and barred by limitation.

To substantiate his case, the petitioner himself came to the box to give evidence as PW.1 by filing an affidavit in lieu of his examination-in-chief reiterating the contents of the petition and specifically stating that he is entitled to all the terminal benefits in view of termination contrary to Section 25 F of the I.D.

Act. Exs. P1 and P2 are the copies of EPF slips for the years 2000-01 and 2001-02 respectively marked through PW1. During the course cross examination,

PW1 admitted that as per Exs. P1 and P2 documents the 2nd respondent is shown as employer and that there is no letter available with him to show that he worked in the 1st respondent company. He admitted that the 1st respondent company was already closed and is not existence. He categorically denied the suggestions that he worked under the 2nd respondent that there is no employee and employer relationship between himself and the 1st respondent that he had already taken his

PF amount and other amounts and that falsely the case is filed. It is elicited from

PW1 that he took the plea in the reference that the 2nd respondent took his resignation forcibly.

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Sri M. Pardha Saradhi, the Manager (HR) worked in Gudipallipadu plant from January, 2001 till June, 2003 gave evidence as RW1 by filing an affidavit in lieu of his examination in chief by iterating the contents of the counter of R1and specifically stating that there was no employer-employee relationship exists between the petitioner and R1. Exs. R1 to R6 were marked through RW1.

Ex. R1 is the copy of certificate of Registration of the 1st respondent

dt. 28-03-2000 of Gudipallipadu Plant. Ex. R2 is the copy of license

dt. 17-03-2001 of the 2nd respondent which will remain in force upto 16-03-2002.

Ex. R3 is the copy of agreement dt. 01-04-2001 in between the Respondent Nos.

1 and 2. Ex. R4 is the copy of Form-XXV submitted to ACL, Nellore along with covering letter. Ex. R5 is the copy of letter dt. 04-02-2004 of R1 sent to DCL,

Guntur informing that the petitioner was not employed directly ever since it had taken over the business. Ex. R6 is the copy of letter dt. 11-03-2004 of R1 sent to

DCL, Guntur informing that the petitioner and his batchmates submitted their resignations after settlement of their PF accounts. During the course of cross examination, RW1 stated that the loading and unloading workers were not the permanent employees and hence no such worker was taken by the 1st respondent.

RW1 deposed that the contract work to supply the loading and unloading workers was given to the 2nd respondent in the year 2000 and the contractor usually supplied the workers as per the requisitions given day wise or week wise. He denied the suggestion that R1 company supervised the work of the workers engaged by the contractor. He stated that the contractor himself supervised their work. He specifically stated that the information given by the 2nd respondent was to the effect that all the workers under the contract were submitted resignations at a time.

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On behalf of the 2nd respondent, Sri B. Venkata Rama Rao, the

Accountant of the 2nd respondent firm gave evidence as RW2 by filing an affidavit in lieu of his examination in chief by reiterating the contents of the counter of R2 and specifically stating that the petition is not maintainable and liable to be dismissed. Exs. R7 to R13 were marked through him. Ex. R7 is the copy of

Authorization letter dt. 09-04-2016 authorizing him to give evidence in the case.

Ex. R8 is the resignation letter of the petitioner dt. 04-01-2003. It shows that the petitioner, who was attending the work of loading and unloading for the three years prior to its date resigning to the job since he was unable to attend the works.

Ex. R9 is the Releaving letter dt. 05-01-2003 and it shows that the resignation of the petitioner was accepted w.e.f., 05-01-2003 and Gratuity amount of Rs.30,000/- was being released. Ex. R10 is the copy of postdated cheque for Rs.30,000/-

dt. 06-01-2003. Ex. R11 is the copy of letter dt. 05-01-2003 of the petitioner

requesting the 2nd respondent to make payment by way of cash instead of cheque since he was not having Bank Account. Ex. R12 is the voucher dt. 05-01-2003 showing that an amount of Rs.30,000/- was paid to the petitioner as Gratuity towards full and final settlement. Ex. R13 is the copy of the petition filed before the Conciliation Officer, Nellore by the petitioner and 21 others for resolving the dispute against the 1st respondent. During the course of cross examination RW2 specifically stated that the 2nd respondent obtained license from the Labour

Department in the year 2001 and supplying the workers to the 1st respondent since 01-04-2001. He stated that the 1st respondent company called for tenders for supply of workers but oral intimation was given to the 2nd respondent to supply the

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workers. He admitted that appointment letters were not given to the workers. He expressed his ignorance as to the payments made towards EPF contributions to the petitioner and others. While answering a specific question, RW2 stated that though the workers were supplied to the R1 company the supervision of the works was made by R2. He denied the specific suggestion that the signatures of the workers were taken on blank papers and that the resignation letters were fabricated. It is elicited from RW2 that whenever payment were made covering more than Rs. 50,000/- R2 used to issue cheques only.

As verified from the pleadings and the evidence let in before the court, the facts which are not in dispute are that the petitioner and some others attended loading and unloading works in R1 company when they were supplied by R2

Agency. The main question to be decided is whether there was employee and employer relationship in between the petitioner and R1 company. The learned counsel for the 1st respondent vehemently argued that unless the petitioner establish that he was having master and servant relationship with R1 company the petition is not maintainable. He cited several decisions of the Hon'ble Apex Court and other Hon'ble High Courts to substantiate his argument that the workmen employing by the 2nd respondent can not be the workers of the 1st respondent company. The Hon'ble Apex Court discussed detailedly the distinction between the contract of service and contract for service in the case of Dharangadhara

Chemical Works Limited and State of Saurashtra and others reported in 1957

I LLJ page 477. It was observed that there must exist the right in the master to

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supervise and control the work done by the servant not only in the matter of directing what work is to be done to establish that there was master and servant relationship. In another decision reported in 1985 II LLJ page 4 (The workmen of the Food Corporation of India Vs. M/s. Food Corporation of India) the Hon'ble

Apex Court held that the workmen employed by the contractor can not be the workmen of third party who engages the contractor to accomplish a particular reason and thereby no master and servant relationship exists. Similar view was taken by the Hon'ble Apex Court in the case of Employers in relation to the

Management of the Reserve Bank of India Vs. their workmen reported in AIR 1996 SC 1241. A clear cut distinction between a contractor and a workman was drawn by the Hon'ble Apex Court in the case of Chintaman Rao Vs. State of

Madyapradesh reported in AIR 1958 SC 388. If the analogy taken in all the referred to decisions is followed, it is to be doubted whether such master and servant relationship was in the existence in between the petitioner and R1 company.

The next point on which must argumentation was made by the Learned counsel for the R1 company is about maintainability of the application U/s. 2 A of the I.D. Act. The argument is that the adjudication U/s. 2 A is prescribed only as to the mode of discharge, dismissal, retrenchment or termination and that the question whether the contract labour was a ruse or camouflage can not be raised

U/s. 2 A by the individual contract labour. The said view was taken by the Hon'ble

High Court of AP in the case of Oil and Natural Gas Corporation Limited, KG

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Project, Rajhmandry Vs. N. Satyanarayana and others reported in 2003 (3) ALD page 711. The court held that such workers can only approach U/s. 2 (K) to reference U/s. 10 (1) of the I.D. Act. The nature and relative scope of the disputes that may be raised U/s. 2 (A) of the I.D. Act and 2 (K) of the I.D. Act was decided in the case of Bharath Heavy Electricals Limited Vs. Anil and others by the

Hon'ble Apex Court reported in (2007) I SCC page 610. It was observed that

Section 2 A of the I.D. Act contemplates nothing more than to declare an individual dispute to be an Industrial Dispute and that it does not amend the defication of Industrial Dispute set out in Section 2 K of the Industrial Disputes

Act, 1947. What was observed by the court was that Section 2 A does not cover every type of dispute between an individual workman and his employer. To support the argument that dispute relating to a person who is not a workman is not an Industrial Dispute, the learned counsel for the 1st respondent relied on the decision of the Hon'ble Apex Court given in the case of workman of Dimakuchi

Tea Estates (Assam Chah Karmachari Sangha) Vs. Dimakuchi Tea Estates reported in 1958 I LLJ SC page 500. It was observed in the decision that the dispute relating to a person who is not a workman within the meaning of Section 2 (S) of the I.D. Act is not an Industrial Dispute and it may be a dispute within

Section 2 (K) of the I.D. Act. In the present case, the prayer made by the petitioner is to pass an order in respect of all the terminal benefits pleading that the termination is contrary to Section 25 F of the I.D. Act. It is not the request of the petitioner to order reinstatement. Unless the employee and employer relationship in between the petitioner and R1 is established, the question of petitioner taking

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shelter U/s. 25 F of the I.D. Act does not arise. The evidence and material available in the case only discloses that the petitioner was supplied by the 2nd respondent, who got an agreement with the 1st respondent to supply loading and unloading workers. In such case, the maintainability of the application U/s. 2 A of the I.D. Act against the 1st respondent is to be doubted.

The learned counsel for the petitioner vehemently argued that the very theory of resignation setup by the respondents is false that no payment made as pleaded and that the respondents have no right to alter the mode of payment without knowledge of the petitioner and without giving notice U/s. 9 A of the I.D.

Act. The documents filed by the respondent are clinchingly establishing that the petitioner submitted resignation letter and received the Gratuity amount in cash.

The documents Exs. R8 and R11 can not be brushed aside lightly. The petitioner made a request through Ex. R11 to make payment by cash instead of cheque towards full and final settlement. Ex. R10 cheque number is also mentioned in

Ex. R11 document. With the above documents and other documents relied on by the respondent, it is to be concluded that the petitioner had his final settlement with R2. To claim that he was the employee of R1 company, the petitioner relied on Exs. P1 and P2 documents which are only EPF slips. Admittedly, the 2nd respondent is shown in both Exs. P1 and P2 documents as the employer. Even if evidence is available to show that there was contribution to ESI in the name of workman the same can not be taken as employee and employer relationship was established. The Hon'ble High Court of AP in the case of Deccan Chronicle

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(Represented by its Managing Partner T. Venkatram Reddy) Vs. G. Pedda Reddy and others reported in 2004 (3) LLN page 916 has observed that the contribution to Employees State Insurance in the name of workman can not shown employer- employee relationship. Therefore, the documents Exs. P1 and P2 will not help the petitioner's case.

The another argument advanced on behalf of the petitioner is that the 1st respondent got obligation to employ the Labour of the Transferor company and therefore the petitioner who joined originally in the transferor company can make claim. The obligations of a company who got transfer from another company was discussed by the Hon'ble High Court of AP in the case of Bharath Coco-Cola

Bottling South East Private Limited, Vijayawada Vs. the Government of AP and others reported in 2002 (1) ALD page 103 (DB). Facts involved in both the present case and the case cited have got some similarities and in both the cases the

Coco-Cola Bottling Company was involved. There was transfer of a company in the cited decision by sale to another company. In the cited case the matter was decided when reference was made U/s. 10 (1) ( c ) and Section 10 D of the

Industrial Disputes Act. The Hon'ble Division Bench has observed that there is no obligation on the transferee company to employ the Labour of the Transferor company since no relationship of master and servant exists between transferee company and the erstwhile employees of the transferor company. The court held that the reference itself is not maintainable. Therefore, the petitioner has no claim against R1 even it is a fact that R1 company taken over the plant situated at

Gudipallipadu of Nellore District.

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On a careful consideration of all the facts and circumstances, it is to be held that the application U/s. 2 A of the I.D. Act is not maintainable against the 1st respondent. The very master and servant relationship in between the petitioner and R1 company was not established by the petitioner. Further, as rightly pointed out by the learned counsel for the 2nd respondent the approach of the petitioner is belated one. The contention of the 2nd respondent that the petitioner had submitted resignation letter and had full and final settlement by receiving Rs.30,000/- to be taken as established. In such circumstances, the request of the petitioner is not maintainable against both the respondents. Thereby, the petition will fail and the point to be decided against the petitioner.

In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in the open court on this the 23rd day of May, 2016.

Sd/-XXXX

PRESIDING OFFICER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent :

PW1 : K.C Penchalaiah RW1 : M. Pardha Saradhi. RW2 : B. Venkata Rama Rao.

DOCUMENTS MARKED FOR PETITIONER

Ex. P1 : Copy of EPF slip for the year 2000-01.

Ex. P2 : Copy of EPF slip for the year 2001-02.

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DOCUMENTS MARKED FOR RESPONDENTs

Ex. R1 : Copy of Certificate of Registration of the 1st respondent dt. 28-03-2000.

Ex. R2 : Copy of license dt. 17-03-2001 of the 2nd respondent.

Ex. R3 : Copy of Agreement dt. 01-04-2001 in between the Respondent Nos. 1 and 2.

Ex. R4 : Copy of Form-XXV submitted to ACL, Nellore along with covering letter.

Ex. R5 : Copy of letter dt. 04-02-2004 of R1 sent to DCL, Guntur.

Ex. R6 : Copy of letter dt. 11-03-2004 of R1 sent to DCL, Guntur.

Ex. R7 : Copy of Authorization letter dt. 09-04-2016.

Ex. R8 : Resignation letter dt. 04-01-2003.

Ex. R9 : Resignation acceptance and relieving letter dt. 05-01-2003.

Ex. R10 : Copy of the post dated cheque for Rs.30,000/- dt. 06-01-2003.

Ex. R11 : Request letter dt. 05-01-2003.

Ex. R12 : Receipt of full and final settlement of Gratuity dt. 05-01-2003.

Ex. R13 : Copy of the petition filed before the Conciliation Officer, Nellore.

Sd/-XXXX

PRESIDING OFFICER

// TRUE COPY//

PRESIDING OFFICER

LABOUR COURT.

BEFORE THE PRESIDING OFFICER, LABOUR COURT, GUNTUR

PRSENT : SRI C. LAKSHMI NARAYANA, M.COM., LL.M.,

PRESIDING OFFICER

This the 23rd Day of May, 2016.

INDUSTRIAL DISPUTE No : 63/2011.

Between :

N. Krishnaiah, S/o Balaiah, Chinnacherukur, T.P Mandal,

Nellore District..........PETITIONER

-AND-

1) Hindusthan Coco Cola Beverages (P) Ltd., Gudipallipadu Village & Post, Nellore Rural Mandal, Rep. By Area General Manager, Hindusthan Coco Cola Beverages (P) Ltd., Atmakur Village, Mangalagiri Mandal, Guntur District.

2) P. Ramani Rao, Ravus Security & House Keeping Agency, 32-1-232/3, Sri Lakshmi Nilayam, Besides Sri Satya Lodge, Bowdara Road,

Vizagapatnam, Andhra Pradesh.........RESPONDENTS.

This petition coming before me upon perusing the material papers on record and upon hearing the arguments of Sri B. Srinivasa Rao, Advocate for petitioner and Sri G.V.S.Ganesh, Advocate for first respondent, and Sri D. Balaraju, Advocate for 2nd respondent, the court passed the following :

A W A R D

This application is filed by one N. Krishnaiah, S/o Balaiah under

Sec. 2-A(2) of the Industrial Disputes Act seeking reinstatement with continuity of service, back wages and attendant benefits.

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The Petition averments, in brief, are as follows :

The petitioner was initially appointed by M/s Pinakani Beverages Ltd.,

Gudipallipadu from 20-8-1996 for loading of cases of full bottles of beverages and unloading the cases of empty bottles, sugar bags etc from the lorries. The petitioner & 19 others formed one batch working in one shift. The shift worked for 12 hours in a day i.e., from 8 AM to 8 PM. Another batch of equal number of workers worked in the 2nd shift i.e., from 8 PM to 8 AM. The shifts changed once in a week. The petitioner and others were paid on piece rate basis and payments are made once in a week by the company. The first respondent took over the factory on 1-4-1999. The petitioner was continued by the first respondent. But he was not aware that from 1-4-2001 the salaries were paid by a contractor i.e., the 2nd respondent. So the payment system changed from the direct payment to contractor payment. There was a written agreement Dt.1-4-2001 between the respondents valid for one year for loading and unloading work. On 31-12-2002, the petitioner and his other batch workers were told not to come from 1-1-2003 as their services were not required and they had engaged some other workers. The petitioner and others served Legal Notice to the first respondent with regard to change of their working conditions. The 2nd respondent without issuing Notice, Notice pay, or terminal benefits like Gratuity, retrenchment compensation, all off sudden terminated the services of the petitioner and others from 31-12-2002. The first respondent denied the relationship of employee and employer between the petitioner and others and the first respondent. The petitioner and others raised

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conciliation before the Deputy Commissioner of Labour, Guntur. The 2nd respondent was also impleaded in the conciliation proceedings and he contended that the petitioner and others resigned on 4-1-2003 enmass and the said resignation was accepted and petitioner and others received Rs 30,000/- towards Gratuity in token of full and final settlement. But the petitioner never resigned from the job and the alleged signatures or thumb impressions are forged and he never received any cheque for Rs. 30,000/-. As per letter of ACL, Nellore, the 2nd respondent does not have any contractor license and also not registered with the Labor

Department, Nellore until the petitioner and others transferred to the 2nd respondent. The 2nd respondent paid the wages from the date of taking over and also contributed to P.F & ESI till the petitioner and others were terminated on 31- 12-2002. The bottling plant at Gudipallipadu Nellore District functioned till 11-2- 2006 and the Unit was closed. The workers were transferred to different Units.

Since the petitioner has not resigned and never received Rs 30,000/- at the time of termination, the petitioner is entitled to compensation under Sec 25-F of the I.D

Act and other terminal benefits. Therefore, the petitioner prayed for an Order for terminal benefits.

The 1 st respondent filed counter with the following averments :

The petitioner was engaged by the 2nd respondent who is a licensed contractor under the provisions of the Contract Labour (Regulation & Abolition)

Act 1970. There exists no relationship of employer and employee between the first respondent and the petitioner. The present petition was totally outside the scope of the provisions of Sec 2-A of the I.D Act and therefore liable to be rejected

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in limini since the petitioner was not retrenched, dismissed or terminated employee. This court has no jurisdiction to grant relief against the first respondent since the petitioner was not engaged by the first respondent. When the petitioner was not the employee of this respondent, the question of termination, dismissal, discharge or retrenchment as contemplated under Sec 2-A of the I.D Act does not arise and consequently no application can be maintained against this respondent.

The first respondent Unit has been closed with effect from 11-2-2006 for business reasons and in view of closure of the establishment, the present dispute nothing survives for consideration by this Court and on this ground also, the present petition is liable to be closed. A group of persons numbering 22 who were employed by the 2nd respondent through authorized representative approached the conciliation Officer Cum Deputy Commissioner of Labour, Guntur and on receipt of Notice, this respondent attended and participated in the conciliation meetings and represented that the said 22 persons were never employed by this respondent directly but they were employed by the 2nd respondent ie., the contractor. It was further represented before the conciliation Officer that their wages are paid by the 2nd respondent and PF and ESI contributions were also remitted by the said 2nd respondent. The 2nd respondent also participated in the conciliation meetings and produced documents showing that the petitioners had tendered resignations which were accepted by the 2nd respondent by settling their accounts in full and final. As the conciliation proceedings ended in failure, the same was referred to Labour court.

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The said reference was numbered as I.D 105/2005. Admittedly, the 2nd respondent who was employed the petitioner and others cannot raise any dispute against the first respondent . The first respondent filed WP 22395/2007 on the file of Hon'ble High Court of Andhra Pradesh challenging the said Order of Reference and he same was admitted since the said dispute was not espoused by the workmen or any Union of the workmen of the first respondent company which is essential ingredient for the Industrial Dispute under Sec 2(k) of the I.D Act.

Further, the petitioners in I.D No 105/2005 filed claim statement admitting the closure of the bottling plant/factory of the first respondent but prayed for relief of reinstatement. After filing counter by the respondents in the above case, the petitioner withdraw the said I.D with a liberty to file applications under Sec 2-A(2) of the I.D Act.

This respondent denied the transfer of the petitioner to the 2nd respondent at any point of time and this respondent never engaged the petitioner at any point of time. The petitioner is not entitled to compensation and terminal benefits under Sec 25-F of the I.D Act. Therefore, this respondent prays to dismiss this petition against this respondent as Not maintainable.

The 2 nd respondent filed counter with the following averments :

The petitioner raised this dispute after nine years from the date of alleged termination Dated 31-12-2002 and hence this petition is barred by time and also belated and tale one and is liable to be dismissed. The petitioner and others raised conciliation before the Asst Commissioner of Labour, Nellore

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praying their services were terminated without following the procedure laid down under Sec 25-F of the I.D Act and the Government referred the said dispute to this court for adjudication by mentioning the parties and petitioner and others and the first respondent and the same was numbered as I.D 105/2005. Thus, as per the said reference, this respondent is not a necessary party since no relief is prayed against this respondent by the petitioner and others. This respondent and the first respondent filed their individual counters in the above I.D. The first respondent filed W.P No. 22395/2007 before the Hon'ble High Court questioning the said reference in I.D 105/2005 on the file of this court and got stayed as per Orders

Dated 25-4-2008 in WPMP No 29038/2007 pending the said Writ Petition before

the Hon'ble High Court. In the mean while, the petitioner with drawn the said I.D.

Again for the same reliefs in I.D 105/2005, the petitioner filed this I.D for terminal benefits with abnormal delay without any explanation for the said delay. Thus, the present dispute is hit by resjudicata. Further, this petition is a belated and stale one and also barred by time and is liable to be rejected. The Nature of activity of this respondent is that they used to supply work force i.e., security guards and workers for loading and unloading purpose to different organizations and companies.

Accordingly, this respondent got work order from the first respondent to supply workers for loading and unloading purposes in the first respondent's company premises for which both the respondents entered into an agreement on 24-11-2000.

For the said work, this respondent engaged the petitioner afresh for loading and unloading works and sent them to the first respondent. Accordingly, the petitioner worked in the first respondent company and this respondent paid wages for the

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period he worked. While so, the petitioner submitted resignation to this respondent on 4-1-2003. This respondent accepted the resignation of the petitioner and settled his account by paying Rs. 30,000/- towards Gratuity and other terminal benefits through cheque. The petitioner encashed the said check without any protest. Thus, it was proved that it is a case of resignation of the petitioner and not a case of termination as alleged by t he petitioner on 31-12-2002. As such, the question of violation of Sec 25-F of the I.D Act by this respondent does not arise. This respondent came to know that the petitioner herein engaged in some other establishments and got employment after he resigned to his job with this respondent. Further, the claims and contentions of the petitioner are untenable in law and also without any legal basis. The present petition is misconceived and unsustainable one and is liable to be dismissed. Therefore, this respondent prays to dismiss this petition without granting any relief to the petitioner.

Petitioner examined himself as PW1 and got marked Ex P1 and P2 on his behalf. RW1 was examined on behalf of the first respondent and got marked

Ex R1 to R6. RW2 was examined on behalf of the 2nd respondent and got marked

Ex R7 to R13. Heard both sides.

The Point that arise for consideration in this case is :

Whether, the petitioner is entitled to terminal benefits as prayed for ?

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Point :-The specific case of the petitioner is that he was employed originally at Gudipallipadu premises and worked from 20-8-96 that he along with some others as a batch worked that they all were paid on piece rate basis once in a week and that R1 company took over the factory on 1-4-99. The further case is that he had no knowledge about payment of salaries by R2 from 1-4-2001 about transferring them to R2 and about written agreement entered into by the

Transferee i.e., R1 and R2 on 1-4-2001.As per the case of the petitioner, he was told on 31-12-2002 not to come to duty from 1-1-2003 that he terminated on 31-12-2002 that a legal notice dt. 2-5-2003 was issued that a false reply

dt. 26-6-2003 was given and that he along with other batch mates made

conciliation efforts. The further case is that the respondents took the plea that he submitted resignation letter on 4-1-2003 that the same was accepted that payment of Rs. 30,000/- was made towards gratuity in token of full and final settlement.

The clear case of the petitioner is that no payment was made that no cheque was received and that he did not sign or affixed thumb impression on any paper. The petitioner claimed that he is entitled for compensation U/s.25F of the I.D.Act. The

First Respondent questioned the very maintainability of the petition and pleaded that the petitioner is not a workman as defined U/s.2(s) of the I.D.Act that there is no employee and employer relationship with the petitioner and that the prayer made in the petition is out of the scope of Section 2A of the I.D.Act. The further case is that R1 factory was closed on 11-2-06 R2 was the contractor and R2 was entrusted with the work of loading and unloading vide agreement dt. 24-11-2000.

With regard to the Conciliation proceedings, it was pleaded that Reference was

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made in I.D. 105/05 that it was challenged by Writ petition in WP 22395/2007 that later I.D.105/05 was withdrawn with liberty to file separate petitions. The specific case of the Second Respondent is that the petitioner submitted Resignation on 4-1-03 and that it was accepted by making payment of Rs.30,000/- .The Second

Respondent took the further pleas that the petition is belated one since filed after lapse of 9 years from the date of alleged termination that it is liable to be dismissed and that no relief was prayed for by the petitioner in the Reference as against the Second Respondent. The ultimate case is that the petition is hit by

Resjudicata and barred by limitation.

To substantiate his case, the petitioner himself came to the box to give evidence as PW.1 by filing an affidavit in lieu of his examination-in-chief reiterating the contents of the petition and specifically stating that he is entitled to all the terminal benefits in view of termination contrary to Section 25 F of the I.D.

Act. Exs. P1 and P2 are the copies of EPF slips for the years 2000-01 and 2001-02 respectively marked through PW1. During the course cross examination,

PW1 admitted that as per Exs. P1 and P2 documents the 2nd respondent is shown as employer and that there is no letter available with him to show that he worked in the 1st respondent company. He admitted that the 1st respondent company was already closed and is not existence. He categorically denied the suggestions that he worked under the 2nd respondent that there is no employee and employer relationship between himself and the 1st respondent that he had already taken his

PF amount and other amounts and that falsely the case is filed. It is elicited from

PW1 that he took the plea in the reference that the 2nd respondent took his resignation forcibly.

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Sri M. Pardha Saradhi, the Manager (HR) worked in Gudipallipadu plant from January, 2001 till June, 2003 gave evidence as RW1 by filing an affidavit in lieu of his examination in chief by iterating the contents of the counter of R1and specifically stating that there was no employer-employee relationship exists between the petitioner and R1. Exs. R1 to R6 were marked through RW1.

Ex. R1 is the copy of certificate of Registration of the 1st respondent

dt. 28-03-2000 of Gudipallipadu Plant. Ex. R2 is the copy of license

dt. 17-03-2001 of the 2nd respondent which will remain in force upto 16-03-2002.

Ex. R3 is the copy of agreement dt. 01-04-2001 in between the Respondent Nos.

1 and 2. Ex. R4 is the copy of Form-XXV submitted to ACL, Nellore along with covering letter. Ex. R5 is the copy of letter dt. 04-02-2004 of R1 sent to DCL,

Guntur informing that the petitioner was not employed directly ever since it had taken over the business. Ex. R6 is the copy of letter dt. 11-03-2004 of R1 sent to

DCL, Guntur informing that the petitioner and his batchmates submitted their resignations after settlement of their PF accounts. During the course of cross examination, RW1 stated that the loading and unloading workers were not the permanent employees and hence no such worker was taken by the 1st respondent.

RW1 deposed that the contract work to supply the loading and unloading workers was given to the 2nd respondent in the year 2000 and the contractor usually supplied the workers as per the requisitions given day wise or week wise. He denied the suggestion that R1 company supervised the work of the workers engaged by the contractor. He stated that the contractor himself supervised their work. He specifically stated that the information given by the 2nd respondent was to the effect that all the workers under the contract were submitted resignations at a time.

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On behalf of the 2nd respondent, Sri B. Venkata Rama Rao, the

Accountant of the 2nd respondent firm gave evidence as RW2 by filing an affidavit in lieu of his examination in chief by reiterating the contents of the counter of R2 and specifically stating that the petition is not maintainable and liable to be dismissed. Exs. R7 to R13 were marked through him. Ex. R7 is the copy of

Authorization letter dt. 09-04-2016 authorizing him to give evidence in the case.

Ex. R8 is the resignation letter of the petitioner dt. 04-01-2003. It shows that the petitioner, who was attending the work of loading and unloading for the three years prior to its date resigning to the job since he was unable to attend the works.

Ex. R9 is the Releaving letter dt. 05-01-2003 and it shows that the resignation of the petitioner was accepted w.e.f., 05-01-2003 and Gratuity amount of Rs.30,000/- was being released. Ex. R10 is the copy of postdated cheque for Rs.30,000/-

dt. 06-01-2003. Ex. R11 is the copy of letter dt. 05-01-2003 of the petitioner

requesting the 2nd respondent to make payment by way of cash instead of cheque since he was not having Bank Account. Ex. R12 is the voucher dt. 05-01-2003 showing that an amount of Rs.30,000/- was paid to the petitioner as Gratuity towards full and final settlement. Ex. R13 is the copy of the petition filed before the Conciliation Officer, Nellore by the petitioner and 21 others for resolving the dispute against the 1st respondent. During the course of cross examination RW2 specifically stated that the 2nd respondent obtained license from the Labour

Department in the year 2001 and supplying the workers to the 1st respondent since 01-04-2001. He stated that the 1st respondent company called for tenders for

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supply of workers but oral intimation was given to the 2nd respondent to supply the workers. He admitted that appointment letters were not given to the workers. He expressed his ignorance as to the payments made towards EPF contributions to the petitioner and others. While answering a specific question, RW2 stated that though the workers were supplied to the R1 company the supervision of the works was made by R2. He denied the specific suggestion that the signatures of the workers were taken on blank papers and that the resignation letters were fabricated. It is elicited from RW2 that whenever payment were made covering more than Rs. 50,000/- R2 used to issue cheques only.

As verified from the pleadings and the evidence let in before the court, the facts which are not in dispute are that the petitioner and some others attended loading and unloading works in R1 company when they were supplied by R2

Agency. The main question to be decided is whether there was employee and employer relationship in between the petitioner and R1 company. The learned counsel for the 1st respondent vehemently argued that unless the petitioner establish that he was having master and servant relationship with R1 company the petition is not maintainable. He cited several decisions of the Hon'ble Apex Court and other Hon'ble High Courts to substantiate his argument that the workmen employing by the 2nd respondent can not be the workers of the 1st respondent company. The Hon'ble Apex Court discussed detailedly the distinction between the contract of service and contract for service in the case of Dharangadhara

Chemical Works Limited and State of Saurashtra and others reported in 1957

I LLJ page 477. It was observed that there must exist the right in the master to

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supervise and control the work done by the servant not only in the matter of directing what work is to be done to establish that there was master and servant relationship. In another decision reported in 1985 II LLJ page 4 (The workmen of the Food Corporation of India Vs. M/s. Food Corporation of India) the Hon'ble

Apex Court held that the workmen employed by the contractor can not be the workmen of third party who engages the contractor to accomplish a particular reason and thereby no master and servant relationship exists. Similar view was taken by the Hon'ble Apex Court in the case of Employers in relation to the

Management of the Reserve Bank of India Vs. their workmen reported in AIR 1996 SC 1241. A clear cut distinction between a contractor and a workman was drawn by the Hon'ble Apex Court in the case of Chintaman Rao Vs. State of

Madyapradesh reported in AIR 1958 SC 388. If the analogy taken in all the referred to decisions is followed, it is to be doubted whether such master and servant relationship was in the existence in between the petitioner and R1 company.

The next point on which must argumentation was made by the Learned counsel for the R1 company is about maintainability of the application U/s. 2 A of the I.D. Act. The argument is that the adjudication U/s. 2 A is prescribed only as to the mode of discharge, dismissal, retrenchment or termination and that the question whether the contract labour was a ruse or camouflage can not be raised

U/s. 2 A by the individual contract labour. The said view was taken by the Hon'ble

High Court of AP in the case of Oil and Natural Gas Corporation Limited, KG

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Project, Rajhmandry Vs. N. Satyanarayana and others reported in 2003 (3) ALD page 711. The court held that such workers can only approach U/s. 2 (K) to reference U/s. 10 (1) of the I.D. Act. The nature and relative scope of the disputes that may be raised U/s. 2 (A) of the I.D. Act and 2 (K) of the I.D. Act was decided in the case of Bharath Heavy Electricals Limited Vs. Anil and others by the

Hon'ble Apex Court reported in (2007) I SCC page 610. It was observed that

Section 2 A of the I.D. Act contemplates nothing more than to declare an individual dispute to be an Industrial Dispute and that it does not amend the defication of Industrial Dispute set out in Section 2 K of the Industrial Disputes

Act, 1947. What was observed by the court was that Section 2 A does not cover every type of dispute between an individual workman and his employer. To support the argument that dispute relating to a person who is not a workman is not an Industrial Dispute, the learned counsel for the 1st respondent relied on the decision of the Hon'ble Apex Court given in the case of workman of Dimakuchi

Tea Estates (Assam Chah Karmachari Sangha) Vs. Dimakuchi Tea Estates reported in 1958 I LLJ SC page 500. It was observed in the decision that the dispute relating to a person who is not a workman within the meaning of Section 2 (S) of the I.D. Act is not an Industrial Dispute and it may be a dispute within

Section 2 (K) of the I.D. Act. In the present case, the prayer made by the petitioner is to pass an order in respect of all the terminal benefits pleading that the termination is contrary to Section 25 F of the I.D. Act. It is not the request of the petitioner to order reinstatement. Unless the employee and employer relationship in between the petitioner and R1 is established, the question of petitioner taking

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shelter U/s. 25 F of the I.D. Act does not arise. The evidence and material available in the case only discloses that the petitioner was supplied by the 2nd respondent, who got an agreement with the 1st respondent to supply loading and unloading workers. In such case, the maintainability of the application U/s. 2 A of the I.D. Act against the 1st respondent is to be doubted.

The learned counsel for the petitioner vehemently argued that the very theory of resignation setup by the respondents is false that no payment made as pleaded and that the respondents have no right to alter the mode of payment without knowledge of the petitioner and without giving notice U/s. 9 A of the I.D.

Act. The documents filed by the respondent are clinchingly establishing that the petitioner submitted resignation letter and received the Gratuity amount in cash.

The documents Exs. R8 and R11 can not be brushed aside lightly. The petitioner made a request through Ex. R11 to make payment by cash instead of cheque towards full and final settlement. Ex. R10 cheque number is also mentioned in

Ex. R11 document. With the above documents and other documents relied on by the respondent, it is to be concluded that the petitioner had his final settlement with R2. To claim that he was the employee of R1 company, the petitioner relied on Exs. P1 and P2 documents which are only EPF slips. Admittedly, the 2nd respondent is shown in both Exs. P1 and P2 documents as the employer. Even if evidence is available to show that there was contribution to ESI in the name of workman the same can not be taken as employee and employer relationship was established. The Hon'ble High Court of AP in the case of Deccan Chronicle

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(Represented by its Managing Partner T. Venkatram Reddy) Vs. G. Pedda Reddy and others reported in 2004 (3) LLN page 916 has observed that the contribution to Employees State Insurance in the name of workman can not shown employer- employee relationship. Therefore, the documents Exs. P1 and P2 will not help the petitioner's case.

The another argument advanced on behalf of the petitioner is that the 1st respondent got obligation to employ the Labour of the Transferor company and therefore the petitioner who joined originally in the transferor company can make claim. The obligations of a company who got transfer from another company was discussed by the Hon'ble High Court of AP in the case of Bharath Coco-Cola

Bottling South East Private Limited, Vijayawada Vs. the Government of AP and others reported in 2002 (1) ALD page 103 (DB). Facts involved in both the present case and the case cited have got some similarities and in both the cases the

Coco-Cola Bottling Company was involved. There was transfer of a company in the cited decision by sale to another company. In the cited case the matter was decided when reference was made U/s. 10 (1) ( c ) and Section 10 D of the

Industrial Disputes Act. The Hon'ble Division Bench has observed that there is no obligation on the transferee company to employ the Labour of the Transferor company since no relationship of master and servant exists between transferee company and the erstwhile employees of the transferor company. The court held that the reference itself is not maintainable. Therefore, the petitioner has no claim against R1 even it is a fact that R1 company taken over the plant situated at

Gudipallipadu of Nellore District.

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On a careful consideration of all the facts and circumstances, it is to be held that the application U/s. 2 A of the I.D. Act is not maintainable against the 1st respondent. The very master and servant relationship in between the petitioner and R1 company was not established by the petitioner. Further, as rightly pointed out by the learned counsel for the 2nd respondent the approach of the petitioner is belated one. The contention of the 2nd respondent that the petitioner had submitted resignation letter and had full and final settlement by receiving Rs.30,000/- to be taken as established. In such circumstances, the request of the petitioner is not maintainable against both the respondents. Thereby, the petition will fail and the point to be decided against the petitioner.

In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in the open court on this the 23rd day of May, 2016.

Sd/-XXXX

PRESIDING OFFICER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent :

PW1 : N. Krishnaiah RW1 : M. Pardha Saradhi. RW2 : B. Venkata Rama Rao.

DOCUMENTS MARKED FOR PETITIONER

Ex. P1 : Copy of EPF slip for the year 2000-01.

Ex. P2 : Copy of EPF slip for the year 2001-02.

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DOCUMENTS MARKED FOR RESPONDENTs

Ex. R1 : Copy of Certificate of Registration of the 1st respondent dt. 28-03-2000.

Ex. R2 : Copy of license dt. 17-03-2001 of the 2nd respondent.

Ex. R3 : Copy of Agreement dt. 01-04-2001 in between the Respondent Nos. 1 and 2.

Ex. R4 : Copy of Form-XXV submitted to ACL, Nellore along with covering letter.

Ex. R5 : Copy of letter dt. 04-02-2004 of R1 sent to DCL, Guntur.

Ex. R6 : Copy of letter dt. 11-03-2004 of R1 sent to DCL, Guntur.

Ex. R7 : Copy of Authorization letter dt. 09-04-2016.

Ex. R8 : Resignation letter dt. 04-01-2003.

Ex. R9 : Resignation acceptance and relieving letter dt. 05-01-2003.

Ex. R10 : Copy of the post dated cheque for Rs.30,000/- dt. 06-01-2003.

Ex. R11 : Request letter dt. 05-01-2003.

Ex. R12 : Receipt of full and final settlement of Gratuity dt. 05-01-2003.

Ex. R13 : Copy of the petition filed before the Conciliation Officer, Nellore.

Sd/-XXXX

PRESIDING OFFICER

// TRUE COPY//

PRESIDING OFFICER

LABOUR COURT.

BEFORE THE PRESIDING OFFICER, LABOUR COURT, GUNTUR

PRSENT : SRI C. LAKSHMI NARAYANA, M.COM., LL.M.,

PRESIDING OFFICER

This the 23rd Day of May, 2016.

INDUSTRIAL DISPUTE No : 67/2011.

Between :

P. Prabhudas, S/o Seenaiah, Chinnacherukuru,

T.P Mandalam, Nellore District...............PETITIONER

-AND-

1) Hindusthan Coco Cola Beverages (P) Ltd., Gudipallipadu Village & Post, Nellore Rural Mandal, Rep. By Area General Manager, Hindusthan Coco Cola Beverages (P) Ltd., Atmakur Village, Mangalagiri Mandal, Guntur District.

2) P. Ramani Rao, Ravus Security & House Keeping Agency, 32-1-232/3, Sri Lakshmi Nilayam, Besides Sri Satya Lodge, Bowdara Road,

Vizagapatnam, Andhra Pradesh..........RESPONDENTS.

This petition coming before me upon perusing the material papers on record and upon hearing the arguments of Sri B. Srinivasa Rao, Advocate for petitioner and Sri G.V.S.Ganesh, Advocate for first respondent, and Sri D. Balaraju, Advocate for 2nd respondent, the court passed the following :

A W A R D

This application is filed by one P. Prabhudas, S/o Seenaiah under Sec.

2-A(2) of the Industrial Disputes Act seeking reinstatement with continuity of service, back wages and attendant benefits.

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The Petition averments, in brief, are as follows :

The petitioner was initially appointed by M/s Pinakani Beverages Ltd.,

Gudipallipadu from 1-6-1996 for loading of cases of full bottles of beverages and unloading the cases of empty bottles, sugar bags etc from the lorries. The petitioner & 19 others formed one batch working in one shift. The shift worked for 12 hours in a day i.e., from 8 AM to 8 PM. Another batch of equal number of workers worked in the 2nd shift ie., from 8 PM to 8 AM. The shifts changed once in a week. The petitioner and others were paid on piece rate basis and payments are made once in a week by the company. The first respondent took over the factory on 1-4-1999. The petitioner was continued by the first respondent. But he was not aware that from 1-4-2001 the salaries were paid by a contractor ie., the 2nd respondent . So the payment system changed from the direct payment to contractor payment. There was a written agreement Dt 1-4-2001 between the respondents valid for one year for loading and unloading work. On 31-12-2002, the petitioner and his other batch workers were told not to come from 1-1-2003 as their services were not required and they had engaged some other workers. The petitioner and others served Legal Notice to the first respondent with regard to change of their working conditions. The 2nd respondent without issuing Notice,

Notice pay, or terminal benefits like Gratuity, retrenchment compensation, all off sudden terminated the services of the petitioner and others from 31-12-2002. The first respondent denied the relationship of employee and employer between the petitioner and others and the first respondent. The petitioner and others raised conciliation before the Deputy Commissioner of Labour, Guntur. The 2nd

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respondent was also impleaded in the conciliation proceedings and he contended that the petitioner and others resigned on 4-1-2003 enmass and the said resignation was accepted and petitioner and others received Rs 30,000/- towards Gratuity in token of full and final settlement. But the petitioner never resigned from the job and the alleged signatures or thumb impressions are forged and he never received any cheque for Rs. 30,000/-. As per letter of ACL, Nellore, the 2nd respondent does not have any contractor license and also not registered with the Labor

Department, Nellore until the petitioner and others transferred to the 2nd respondent. The 2nd respondent paid the wages from the date of taking over and also contributed to P.F && ESI till the petitioner and others were terminated on 31-12-2002. The bottling plant at Gudipallipadu Nellore District functioned till 11-2-2006 and the Unit was closed. The workers were transferred to different

Units. Since the petitioner has not resigned and never received Rs 30,000/- at the time of termination, the petitioner is entitled to compensation under Sec 25-F of the I.D Act and other terminal benefits. Therefore, the petitioner prayed for an

Order for terminal benefits.

The 1 st respondent filed counter with the following averments :

The petitioner was engaged by the 2nd respondent who is a licensed contractor under the provisions of the Contract Labour (Regulation & Abolition)

Act 1970. There exists no relationship of employer and employee between the first respondent and the petitioner. The present petition was totally outside the scope of the provisions of Sec 2-A of the I.D Act and therefore liable to be rejected in limini since the petitioner was not retrenched, dismissed or terminated

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employee. This court has no jurisdiction to grant relief against the first respondent since the petitioner was not engaged by the first respondent. When the petitioner was not the employee of this respondent, the question of termination, dismissal, discharge or retrenchment as contemplated under Sec 2-A of the I.D Act does not arise and consequently no application can be maintained against this respondent.

The first respondent Unit has been closed with effect from 11-2-2006 for business reasons and in view of closure of the establishment, the present dispute nothing survives for consideration by this Court and on this ground also, the present petition is liable to be closed. A group of persons numbering 22 who were employed by the 2nd respondent through authorized representative approached the conciliation Officer Cum Deputy Commissioner of Labour, Guntur and on receipt of Notice, this respondent attended and participated in the conciliation meetings and represented that the said 22 persons were never employed by this respondent directly but they were employed by the 2nd respondent ie., the contractor. It was further represented before the conciliation Officer that their wages are paid by the 2nd respondent and PF and ESI contributions were also remitted by the said 2nd respondent. The 2nd respondent also participated in the conciliation meetings and produced documents showing that the petitioners had tendered resignations which were accepted by the 2nd respondent by settling their accounts in full and final. As the conciliation proceedings ended in failure, the same was referred to Labour court.

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The said reference was numbered as I.D 105/2005. Admittedly, the 2nd respondent who was employed the petitioner and others cannot raise any dispute against the first respondent . The first respondent filed WP 22395/2007 on the file of Hon'ble High Court of Andhra Pradesh challenging the said Order of Reference and he same was admitted since the said dispute was not espoused by the workmen or any Union of the workmen of the first respondent company which is essential ingredient for the Industrial Dispute under Sec 2(k) of the I.D Act.

Further, the petitioners in I.D No 105/2005 filed claim statement admitting the closure of the bottling plant/factory of the first respondent but prayed for relief of reinstatement. After filing counter by the respondents in the above case, the petitioner withdraw the said I.D with a liberty to file applications under Sec 2-A(2) of the I.D Act.

This respondent denied the transfer of the petitioner to the 2nd respondent at any point of time and this respondent never engaged the petitioner at any point of time. The petitioner is not entitled to compensation and terminal benefits under

Sec 25-F of the I.D Act. Therefore, this respondent prays to dismiss this petition against this respondent as Not maintainable.

The 2 nd respondent filed counter with the following averments :

The petitioner raised this dispute after nine years from the date of alleged termination Dated 31-12-2002 and hence this petition is barred by time and also belated and tale one and is liable to be dismissed. The petitioner and others raised conciliation before the Asst Commissioner of Labour, Nellore

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praying their services were terminated without following the procedure laid down under Sec 25-F of the I.D Act and the Government referred the said dispute to this court for adjudication by mentioning the parties and petitioner and others and the first respondent and the same was numbered as I.D 105/2005. Thus, as per the said reference, this respondent is not a necessary party since no relief is prayed against this respondent by the petitioner and others. This respondent and the first respondent filed their individual counters in the above I.D. The first respondent filed W.P No. 22395/2007 before the Hon'ble High Court questioning the said reference in I.D 105/2005 on the file of this court and got stayed as per Orders

Dated 25-4-2008 in WPMP No 29038/2007 pending the said Writ Petition before

the Hon'ble High Court. In the mean while, the petitioner with drawn the said I.D.

Again for the same reliefs in I.D 105/2005, the petitioner filed this I.D for terminal benefits with abnormal delay without any explanation for the said delay. Thus, the present dispute is hit by resjudicata. Further, this petition is a belated and stale one and also barred by time and is liable to be rejected. The Nature of activity of this respondent is that they used to supply work force ie security guards and workers for loading and unloading purpose to different organizations and companies.

Accordingly, this respondent got work order from the first respondent to supply workers for loading and unloading purposes in the first respondent's company premises for which both the respondents entered into an agreement on 24-11-2000.

For the said work, this respondent engaged the petitioner afresh for loading and unloading works and sent them to the first respondent. Accordingly, the petitioner worked in the first respondent company and this respondent paid wages for the

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period he worked. While so, the petitioner submitted resignation to this respondent on 4-1-2003. This respondent accepted the resignation of the petitioner and settled his account by paying Rs. 30,000/- towards Gratuity and other terminal benefits through cheque. The petitioner encashed the said check without any protest. Thus, it was proved that it is a case of resignation of the petitioner and not a case of termination as alleged by t he petitioner on 31-12-2002. As such, the question of violation of Sec 25-F of the I.D Act by this respondent does not arise. This respondent came to know that the petitioner herein engaged in some other establishments and got employment after he resigned to his job with this respondent. Further, the claims and contentions of the petitioner are untenable in law and also without any legal basis. The present petition is misconceived and unsustainable one and is liable to be dismissed. Therefore, this respondent prays to dismiss this petition without granting any relief to the petitioner.

Petitioner examined himself as PW1 and got marked Exs. P1 and P2 on his behalf. RW1 was examined on behalf of the first respondent and got marked Exs. R1 to R6. RW2 was examined on behalf of the 2nd respondent and got marked Exs. R7 to R13. Heard both sides.

The Point that arise for consideration in this case is :

Whether, the petitioner is entitled to terminal benefits as prayed by him ?

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Point :-The specific case of the petitioner is that he was employed originally at Gudipallipadu premises and worked from 1-6-1996 that he along with some others as a batch worked that they all were paid on piece rate basis once in a week and that R1 company took over the factory on 1-4-99. The further case is that he had no knowledge about payment of salaries by R2 from 1-4-2001 about transferring them to R2 and about written agreement entered into by the

Transferee i.e., R1 and R2 on 1-4-2001.As per the case of the petitioner, he was told on 31-12-2002 not to come to duty from 1-1-2003 that he terminated on 31-12-2002 that a legal notice dt. 2-5-2003 was issued that a false reply

dt. 26-6-2003 was given and that he along with other batch mates made

conciliation efforts. The further case is that the respondents took the plea that he submitted resignation letter on 4-1-2003 that the same was accepted that payment of Rs. 30,000/- was made towards gratuity in token of full and final settlement.

The clear case of the petitioner is that no payment was made that no cheque was received and that he did not sign or affixed thumb impression on any paper. The petitioner claimed that he is entitled for compensation U/s.25F of the I.D.Act. The

First Respondent questioned the very maintainability of the petition and pleaded that the petitioner is not a workman as defined U/s.2(s) of the I.D.Act that there is no employee and employer relationship with the petitioner and that the prayer made in the petition is out of the scope of Section 2A of the I.D.Act. The further case is that R1 factory was closed on 11-2-06 R2 was the contractor and R2 was entrusted with the work of loading and unloading vide agreement dt. 24-11-2000.

With regard to the Conciliation proceedings, it was pleaded that Reference was

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made in I.D. 105/05 that it was challenged by Writ petition in WP 22395/2007 that later I.D.105/05 was withdrawn with liberty to file separate petitions. The specific case of the Second Respondent is that the petitioner submitted Resignation on 4-1-03 and that it was accepted by making payment of Rs.30,000/- .The Second

Respondent took the further pleas that the petition is belated one since filed after lapse of 9 years from the date of alleged termination that it is liable to be dismissed and that no relief was prayed for by the petitioner in the Reference as against the Second Respondent. The ultimate case is that the petition is hit by

Resjudicata and barred by limitation.

To substantiate his case, the petitioner himself came to the box to give evidence as PW.1 by filing an affidavit in lieu of his examination-in-chief reiterating the contents of the petition and specifically stating that he is entitled to all the terminal benefits in view of termination contrary to Section 25 F of the I.D.

Act. Exs. P1 and P2 are the copies of EPF slips for the years 2000-01 and 2001-02 respectively marked through PW1. During the course cross examination,

PW1 admitted that as per Exs. P1 and P2 documents the 2nd respondent is shown as employer and that there is no letter available with him to show that he worked in the 1st respondent company. He admitted that the 1st respondent company was already closed and is not existence. He categorically denied the suggestions that he worked under the 2nd respondent that there is no employee and employer relationship between himself and the 1st respondent that he had already taken his

PF amount and other amounts and that falsely the case is filed. It is elicited from

PW1 that he took the plea in the reference that the 2nd respondent took his resignation forcibly.

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Sri M. Pardha Saradhi, the Manager (HR) worked in Gudipallipadu plant from January, 2001 till June, 2003 gave evidence as RW1 by filing an affidavit in lieu of his examination in chief by iterating the contents of the counter of R1and specifically stating that there was no employer-employee relationship exists between the petitioner and R1. Exs. R1 to R6 were marked through RW1.

Ex. R1 is the copy of certificate of Registration of the 1st respondent

dt. 28-03-2000 of Gudipallipadu Plant. Ex. R2 is the copy of license

dt. 17-03-2001 of the 2nd respondent which will remain in force upto 16-03-2002.

Ex. R3 is the copy of agreement dt. 01-04-2001 in between the Respondent Nos.

1 and 2. Ex. R4 is the copy of Form-XXV submitted to ACL, Nellore along with covering letter. Ex. R5 is the copy of letter dt. 04-02-2004 of R1 sent to DCL,

Guntur informing that the petitioner was not employed directly ever since it had taken over the business. Ex. R6 is the copy of letter dt. 11-03-2004 of R1 sent to

DCL, Guntur informing that the petitioner and his batchmates submitted their resignations after settlement of their PF accounts. During the course of cross examination, RW1 stated that the loading and unloading workers were not the permanent employees and hence no such worker was taken by the 1st respondent.

RW1 deposed that the contract work to supply the loading and unloading workers was given to the 2nd respondent in the year 2000 and the contractor usually supplied the workers as per the requisitions given day wise or week wise. He denied the suggestion that R1 company supervised the work of the workers engaged by the contractor. He stated that the contractor himself supervised their work. He specifically stated that the information given by the 2nd respondent was to the effect that all the workers under the contract were submitted resignations at a time.

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On behalf of the 2nd respondent, Sri B. Venkata Rama Rao, the

Accountant of the 2nd respondent firm gave evidence as RW2 by filing an affidavit in lieu of his examination in chief by reiterating the contents of the counter of R2 and specifically stating that the petition is not maintainable and liable to be dismissed. Exs. R7 to R13 were marked through him. Ex. R7 is the copy of

Authorization letter dt. 09-04-2016 authorizing him to give evidence in the case.

Ex. R8 is the resignation letter of the petitioner dt. 04-01-2003. It shows that the petitioner, who was attending the work of loading and unloading for the three years prior to its date resigning to the job since he was unable to attend the works.

Ex. R9 is the Releaving letter dt. 05-01-2003 and it shows that the resignation of the petitioner was accepted w.e.f., 05-01-2003 and Gratuity amount of Rs.30,000/- was being released. Ex. R10 is the copy of postdated cheque for Rs.30,000/-

dt. 06-01-2003. Ex. R11 is the copy of letter dt. 05-01-2003 of the petitioner

requesting the 2nd respondent to make payment by way of cash instead of cheque since he was not having Bank Account. Ex. R12 is the voucher dt. 05-01-2003 showing that an amount of Rs.30,000/- was paid to the petitioner as Gratuity towards full and final settlement. Ex. R13 is the copy of the petition filed before the Conciliation Officer, Nellore by the petitioner and 21 others for resolving the dispute against the 1st respondent. During the course of cross examination RW2 specifically stated that the 2nd respondent obtained license from the Labour

Department in the year 2001 and supplying the workers to the 1st respondent since 01-04-2001. He stated that the 1st respondent company called for tenders for supply of workers but oral intimation was given to the 2nd respondent to supply the

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workers. He admitted that appointment letters were not given to the workers. He expressed his ignorance as to the payments made towards EPF contributions to the petitioner and others. While answering a specific question, RW2 stated that though the workers were supplied to the R1 company the supervision of the works was made by R2. He denied the specific suggestion that the signatures of the workers were taken on blank papers and that the resignation letters were fabricated. It is elicited from RW2 that whenever payment were made covering more than Rs. 50,000/- R2 used to issue cheques only.

As verified from the pleadings and the evidence let in before the court, the facts which are not in dispute are that the petitioner and some others attended loading and unloading works in R1 company when they were supplied by R2

Agency. The main question to be decided is whether there was employee and employer relationship in between the petitioner and R1 company. The learned counsel for the 1st respondent vehemently argued that unless the petitioner establish that he was having master and servant relationship with R1 company the petition is not maintainable. He cited several decisions of the Hon'ble Apex Court and other Hon'ble High Courts to substantiate his argument that the workmen employing by the 2nd respondent can not be the workers of the 1st respondent company. The Hon'ble Apex Court discussed detailedly the distinction between the contract of service and contract for service in the case of Dharangadhara

Chemical Works Limited and State of Saurashtra and others reported in 1957

I LLJ page 477. It was observed that there must exist the right in the master to

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supervise and control the work done by the servant not only in the matter of directing what work is to be done to establish that there was master and servant relationship. In another decision reported in 1985 II LLJ page 4 (The workmen of the Food Corporation of India Vs. M/s. Food Corporation of India) the Hon'ble

Apex Court held that the workmen employed by the contractor can not be the workmen of third party who engages the contractor to accomplish a particular reason and thereby no master and servant relationship exists. Similar view was taken by the Hon'ble Apex Court in the case of Employers in relation to the

Management of the Reserve Bank of India Vs. their workmen reported in AIR 1996 SC 1241. A clear cut distinction between a contractor and a workman was drawn by the Hon'ble Apex Court in the case of Chintaman Rao Vs. State of

Madyapradesh reported in AIR 1958 SC 388. If the analogy taken in all the referred to decisions is followed, it is to be doubted whether such master and servant relationship was in the existence in between the petitioner and R1 company.

The next point on which must argumentation was made by the Learned counsel for the R1 company is about maintainability of the application U/s. 2 A of the I.D. Act. The argument is that the adjudication U/s. 2 A is prescribed only as to the mode of discharge, dismissal, retrenchment or termination and that the question whether the contract labour was a ruse or camouflage can not be raised

U/s. 2 A by the individual contract labour. The said view was taken by the Hon'ble

High Court of AP in the case of Oil and Natural Gas Corporation Limited, KG

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Project, Rajhmandry Vs. N. Satyanarayana and others reported in 2003 (3) ALD page 711. The court held that such workers can only approach U/s. 2 (K) to reference U/s. 10 (1) of the I.D. Act. The nature and relative scope of the disputes that may be raised U/s. 2 (A) of the I.D. Act and 2 (K) of the I.D. Act was decided in the case of Bharath Heavy Electricals Limited Vs. Anil and others by the

Hon'ble Apex Court reported in (2007) I SCC page 610. It was observed that

Section 2 A of the I.D. Act contemplates nothing more than to declare an individual dispute to be an Industrial Dispute and that it does not amend the defication of Industrial Dispute set out in Section 2 K of the Industrial Disputes

Act, 1947. What was observed by the court was that Section 2 A does not cover every type of dispute between an individual workman and his employer. To support the argument that dispute relating to a person who is not a workman is not an Industrial Dispute, the learned counsel for the 1st respondent relied on the decision of the Hon'ble Apex Court given in the case of workman of Dimakuchi

Tea Estates (Assam Chah Karmachari Sangha) Vs. Dimakuchi Tea Estates reported in 1958 I LLJ SC page 500. It was observed in the decision that the dispute relating to a person who is not a workman within the meaning of Section 2 (S) of the I.D. Act is not an Industrial Dispute and it may be a dispute within

Section 2 (K) of the I.D. Act. In the present case, the prayer made by the petitioner is to pass an order in respect of all the terminal benefits pleading that the termination is contrary to Section 25 F of the I.D. Act. It is not the request of the petitioner to order reinstatement. Unless the employee and employer relationship in between the petitioner and R1 is established, the question of petitioner taking

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shelter U/s. 25 F of the I.D. Act does not arise. The evidence and material available in the case only discloses that the petitioner was supplied by the 2nd respondent, who got an agreement with the 1st respondent to supply loading and unloading workers. In such case, the maintainability of the application U/s. 2 A of the I.D. Act against the 1st respondent is to be doubted.

The learned counsel for the petitioner vehemently argued that the very theory of resignation setup by the respondents is false that no payment made as pleaded and that the respondents have no right to alter the mode of payment without knowledge of the petitioner and without giving notice U/s. 9 A of the I.D.

Act. The documents filed by the respondent are clinchingly establishing that the petitioner submitted resignation letter and received the Gratuity amount in cash.The documents Exs. R8 and R11 can not be brushed aside lightly. The petitioner made a request through Ex. R11 to make payment by cash instead of cheque towards full and final settlement. Ex. R10 cheque number is also mentioned in Ex. R11 document. With the above documents and other documents relied on by the respondent, it is to be concluded that the petitioner had his final settlement with R2. To claim that he was the employee of R1 company, the petitioner relied on Exs. P1 and P2 documents which are only EPF slips.

Admittedly, the 2nd respondent is shown in both Exs. P1 and P2 documents as the employer. Even if evidence is available to show that there was contribution to ESI in the name of workman the same can not be taken as employee and employer relationship was established. The Hon'ble High Court of AP in the case of Deccan

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Chronicle (Represented by its Managing Partner T. Venkatram Reddy) Vs. G.

Pedda Reddy and others reported in 2004 (3) LLN page 916 has observed that the contribution to Employees State Insurance in the name of workman can not shown employer-employee relationship. Therefore, the documents Exs. P1 and P2 will not help the petitioner's case.

The another argument advanced on behalf of the petitioner is that the 1st respondent got obligation to employ the Labour of the Transferor company and therefore the petitioner who joined originally in the transferor company can make claim. The obligations of a company who got transfer from another company was discussed by the Hon'ble High Court of AP in the case of Bharath Coco-Cola

Bottling South East Private Limited, Vijayawada Vs. the Government of AP and others reported in 2002 (1) ALD page 103 (DB). Facts involved in both the present case and the case cited have got some similarities and in both the cases the

Coco-Cola Bottling Company was involved. There was transfer of a company in the cited decision by sale to another company. In the cited case the matter was decided when reference was made U/s. 10 (1) ( c ) and Section 10 D of the

Industrial Disputes Act. The Hon'ble Division Bench has observed that there is no obligation on the transferee company to employ the Labour of the Transferor company since no relationship of master and servant exists between transferee company and the erstwhile employees of the transferor company. The court held that the reference itself is not maintainable. Therefore, the petitioner has no claim against R1 even it is a fact that R1 company taken over the plant situated at

Gudipallipadu of Nellore District.

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On a careful consideration of all the facts and circumstances, it is to be held that the application U/s. 2 A of the I.D. Act is not maintainable against the 1st respondent. The very master and servant relationship in between the petitioner and R1 company was not established by the petitioner. Further, as rightly pointed out by the learned counsel for the 2nd respondent the approach of the petitioner is belated one. The contention of the 2nd respondent that the petitioner had submitted resignation letter and had full and final settlement by receiving Rs.30,000/- to be taken as established. In such circumstances, the request of the petitioner is not maintainable against both the respondents. Thereby, the petition will fail and the point to be decided against the petitioner.

In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in the open court on this the 23rd day of May, 2016.

Sd/-XXXX

PRESIDING OFFICER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent :

PW1 : P. Prabhudas. RW1 : M. Pardha Saradhi. RW2 : B. Venkata Rama Rao.

DOCUMENTS MARKED FOR PETITIONER

Ex. P1 : Copy of EPF slip for the year 2000-01.

Ex. P2 : Copy of EPF slip for the year 2001-02.

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DOCUMENTS MARKED FOR RESPONDENTs

Ex. R1 : Copy of Certificate of Registration of the 1st respondent dt. 28-03-2000.

Ex. R2 : Copy of license dt. 17-03-2001 of the 2nd respondent.

Ex. R3 : Copy of Agreement dt. 01-04-2001 in between the Respondent Nos. 1 and 2.

Ex. R4 : Copy of Form-XXV submitted to ACL, Nellore along with covering letter.

Ex. R5 : Copy of letter dt. 04-02-2004 of R1 sent to DCL, Guntur.

Ex. R6 : Copy of letter dt. 11-03-2004 of R1 sent to DCL, Guntur.

Ex. R7 : Copy of Authorization letter dt. 09-04-2016.

Ex. R8 : Resignation letter dt. 04-01-2003.

Ex. R9 : Resignation acceptance and relieving letter dt. 05-01-2003.

Ex. R10 : Copy of the post dated cheque for Rs.30,000/- dt. 06-01-2003.

Ex. R11 : Request letter dt. 05-01-2003.

Ex. R12 : Receipt of full and final settlement of Gratuity dt. 05-01-2003.

Ex. R13 : Copy of the petition filed before the Conciliation Officer, Nellore.

Sd/-XXXX

PRESIDING OFFICER

// TRUE COPY//

PRESIDING OFFICER

LABOUR COURT0

BEFORE THE PRESIDING OFFICER, LABOUR COURT, GUNTUR

PRSENT : SRI C. LAKSHMI NARAYANA, M.COM., LL.M.,

PRESIDING OFFICER

This the 23rd Day of May, 2016.

INDUSTRIAL DISPUTE No : 64/2011.

Between :

K.Ravi, S/o Narasaiah, Chinnacherukuru,

T.P Mandalam, Nellore District. .........PETITIONER

-AND-

1) Hindusthan Coco Cola Beverages (P) Ltd., Gudipallipadu Village & Post, Nellore Rural Mandal, Rep. By Area General Manager, Hindusthan Coco Cola Beverages (P) Ltd., Atmakur Village, Mangalagiri Mandal, Guntur District.

2) P. Ramani Rao, Ravus Security & House Keeping Agency, 32-1-232/3, Sri Lakshmi Nilayam, Besides Sri Satya Lodge, Bowdara Road,

Vizagapatnam, Andhra Pradesh..........RESPONDENTS

This petition coming before me upon perusing the material papers on record and upon hearing the arguments of Sri B. Srinivasa Rao, Advocate for petitioner and Sri G.V.S.GANESH, Advocate for first respondent, and Sri D. Balaraju, Advocate for 2nd respondent, the court passed the following :

A W A R D

This application is filed by one K. Ravi, S/o Narasaiah under Sec.

2-A(2) of the Industrial Disputes Act seeking reinstatement with continuity of service, back wages and attendant benefits.

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The Petition averments, in brief, are as follows :

The petitioner was initially appointed by M/s Pinakani Beverages Ltd.,

Gudipallipadu from 8-5-1996 for loading of cases of full bottles of beverages and unloading the cases of empty bottles, sugar bags etc from the lorries. The petitioner & 19 others formed one batch working in one shift. The shift worked for 12 hours in a day i.e., from 8 AM to 8 PM. Another batch of equal number of workers worked in the 2nd shift i.e., from 8 PM to 8 AM. The shifts changed once in a week. The petitioner and others were paid on piece rate basis and payments are made once in a week by the company. The first respondent took over the factory on 1-4-1999. The petitioner was continued by the first respondent. But he was not aware that from 1-4-2001 the salaries were paid by a contractor i.e., the 2nd respondent. So the payment system changed from the direct payment to contractor payment. There was a written agreement Dt.1-4-2001 between the respondents valid for one year for loading and unloading work. On 31-12-2002, the petitioner and his other batch workers were told not to come from 1-1-2003 as their services were not required and they had engaged some other workers. The petitioner and others served Legal Notice to the first respondent with regard to change of their working conditions. The 2nd respondent without issuing Notice, Notice pay, or terminal benefits like Gratuity, retrenchment compensation, all off sudden terminated the services of the petitioner and others from 31-12-2002. The first respondent denied the relationship of employee and employer between the petitioner and others and the first respondent. The petitioner and others raised

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conciliation before the Deputy Commissioner of Labour, Guntur. The 2nd respondent was also impleaded in the conciliation proceedings and he contended that the petitioner and others resigned on 4-1-2003 enmass and the said resignation was accepted and petitioner and others received Rs 30,000/- towards Gratuity in token of full and final settlement. But the petitioner never resigned from the job and the alleged signatures or thumb impressions are forged and he never received any cheque for Rs. 30,000/-. As per letter of ACL, Nellore, the 2nd respondent does not have any contractor license and also not registered with the Labor

Department, Nellore until the petitioner and others transferred to the 2nd respondent. The 2nd respondent paid the wages from the date of taking over and also contributed to P.F && ESI till the petitioner and others were terminated on 31-12-2002. The bottling plant at Gudipallipadu Nellore District functioned till 11-2-2006 and the Unit was closed. The workers were transferred to different

Units. Since the petitioner has not resigned and never received Rs 30,000/- at the time of termination, the petitioner is entitled to compensation under Sec 25-F of the I.D Act and other terminal benefits. Therefore, the petitioner prayed for an

Order for terminal benefits.

The 1 st respondent filed counter with the following averments :

The petitioner was engaged by the 2nd respondent who is a licensed contractor under the provisions of the Contract Labour (Regulation & Abolition)

Act 1970. There exists no relationship of employer and employee between the first respondent and the petitioner. The present petition was totally outside the scope of the provisions of Sec 2-A of the I.D Act and therefore liable to be rejected

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in limini since the petitioner was not retrenched, dismissed or terminated employee. This court has no jurisdiction to grant relief against the first respondent since the petitioner was not engaged by the first respondent. When the petitioner was not the employee of this respondent, the question of termination, dismissal, discharge or retrenchment as contemplated under Sec 2-A of the I.D Act does not arise and consequently no application can be maintained against this respondent.

The first respondent Unit has been closed with effect from 11-2-2006 for business reasons and in view of closure of the establishment, the present dispute nothing survives for consideration by this Court and on this ground also, the present petition is liable to be closed. A group of persons numbering 22 who were employed by the 2nd respondent through authorized representative approached the conciliation Officer Cum Deputy Commissioner of Labour, Guntur and on receipt of Notice, this respondent attended and participated in the conciliation meetings and represented that the said 22 persons were never employed by this respondent directly but they were employed by the 2nd respondent ie., the contractor. It was further represented before the conciliation Officer that their wages are paid by the 2nd respondent and PF and ESI contributions were also remitted by the said 2nd respondent. The 2nd respondent also participated in the conciliation meetings and produced documents showing that the petitioners had tendered resignations which were accepted by the 2nd respondent by settling their accounts in full and final. As the conciliation proceedings ended in failure, the same was referred to Labour court.

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The said reference was numbered as I.D 105/2005. Admittedly, the 2nd respondent who was employed the petitioner and others cannot raise any dispute against the first respondent . The first respondent filed WP 22395/2007 on the file of Hon'ble High Court of Andhra Pradesh challenging the said Order of Reference and he same was admitted since the said dispute was not espoused by the workmen or any Union of the workmen of the first respondent company which is essential ingredient for the Industrial Dispute under Sec 2(k) of the I.D Act.

Further, the petitioners in I.D No 105/2005 filed claim statement admitting the closure of the bottling plant/factory of the first respondent but prayed for relief of reinstatement. After filing counter by the respondents in the above case, the petitioner withdraw the said I.D with a liberty to file applications under Sec 2-A(2) of the I.D Act.

This respondent denied the transfer of the petitioner to the 2nd respondent at any point of time and this respondent never engaged the petitioner at any point of time. The petitioner is not entitled to compensation and terminal benefits under Sec 25-F of the I.D Act. Therefore, this respondent prays to dismiss this petition against this respondent as Not maintainable.

The 2 nd respondent filed counter with the following averments :

The petitioner raised this dispute after nine years from the date of alleged termination Dated 31-12-2002 and hence this petition is barred by time and also belated and tale one and is liable to be dismissed. The petitioner and others raised conciliation before the Asst Commissioner of Labour, Nellore

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praying their services were terminated without following the procedure laid down under Sec 25-F of the I.D Act and the Government referred the said dispute to this court for adjudication by mentioning the parties and petitioner and others and the first respondent and the same was numbered as I.D 105/2005. Thus, as per the said reference, this respondent is not a necessary party since no relief is prayed against this respondent by the petitioner and others. This respondent and the first respondent filed their individual counters in the above I.D. The first respondent filed W.P No. 22395/2007 before the Hon'ble High Court questioning the said reference in I.D 105/2005 on the file of this court and got stayed as per Orders

Dated 25-4-2008 in WPMP No 29038/2007 pending the said Writ Petition before

the Hon'ble High Court. In the mean while, the petitioner with drawn the said I.D.

Again for the same reliefs in I.D 105/2005, the petitioner filed this I.D for terminal benefits with abnormal delay without any explanation for the said delay. Thus, the present dispute is hit by resjudicata. Further, this petition is a belated and stale one and also barred by time and is liable to be rejected. The Nature of activity of this respondent is that they used to supply work force i.e., security guards and workers for loading and unloading purpose to different organizations and companies.

Accordingly, this respondent got work order from the first respondent to supply workers for loading and unloading purposes in the first respondent's company premises for which both the respondents entered into an agreement on 24-11-2000.

For the said work, this respondent engaged the petitioner afresh for loading and unloading works and sent them to the first respondent. Accordingly, the petitioner worked in the first respondent company and this respondent paid wages for the

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period he worked. While so, the petitioner submitted resignation to this respondent on 4-1-2003. This respondent accepted the resignation of the petitioner and settled his account by paying Rs. 30,000/- towards Gratuity and other terminal benefits through cheque. The petitioner encashed the said check without any protest. Thus, it was proved that it is a case of resignation of the petitioner and not a case of termination as alleged by t he petitioner on 31-12-2002. As such, the question of violation of Sec 25-F of the I.D Act by this respondent does not arise. This respondent came to know that the petitioner herein engaged in some other establishments and got employment after he resigned to his job with this respondent. Further, the claims and contentions of the petitioner are untenable in law and also without any legal basis. The present petition is misconceived and unsustainable one and is liable to be dismissed. Therefore, this respondent prays to dismiss this petition without granting any relief to the petitioner.

Petitioner examined himself as PW1 and got marked Exs. P1 and P2 on his behalf. RW1 was examined on behalf of the first respondent and got marked Exs. R1 to R6. RW2 was examined on behalf of the 2nd respondent and got marked Exs. R7 to R13. Heard both sides.

The Point that arise for consideration in this case is :

Whether, the petitioner is entitled to terminal benefits as prayed for ?

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Point :-The specific case of the petitioner is that he was employed originally at Gudipallipadu premises and worked from 08-05-1996 that he along with some others as a batch worked that they all were paid on piece rate basis once in a week and that R1 company took over the factory on 1-4-99. The further case is that he had no knowledge about payment of salaries by R2 from 1-4-2001 about transferring them to R2 and about written agreement entered into by the

Transferee i.e., R1 and R2 on 1-4-2001.As per the case of the petitioner, he was told on 31-12-2002 not to come to duty from 1-1-2003 that he terminated on 31-12-2002 that a legal notice dt. 2-5-2003 was issued that a false reply

dt. 26-6-2003 was given and that he along with other batch mates made

conciliation efforts. The further case is that the respondents took the plea that he submitted resignation letter on 4-1-2003 that the same was accepted that payment of Rs. 30,000/- was made towards gratuity in token of full and final settlement.

The clear case of the petitioner is that no payment was made that no cheque was received and that he did not sign or affixed thumb impression on any paper. The petitioner claimed that he is entitled for compensation U/s.25F of the I.D. Act. The

First Respondent questioned the very maintainability of the petition and pleaded that the petitioner is not a workman as defined U/s.2(s) of the I.D. Act that there is no employee and employer relationship with the petitioner and that the prayer made in the petition is out of the scope of Section 2A of the I.D. Act. The further case is that R1 factory was closed on 11-2-06 R2 was the contractor and R2 was entrusted with the work of loading and unloading vide agreement dt. 24-11-2000.

With regard to the Conciliation proceedings, it was pleaded that Reference was

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made in I.D. 105/05 that it was challenged by Writ petition in WP 22395/2007 that later I.D.105/05 was withdrawn with liberty to file separate petitions. The specific case of the Second Respondent is that the petitioner submitted Resignation on 4-1-03 and that it was accepted by making payment of Rs.30,000/- .The Second

Respondent took the further pleas that the petition is belated one since filed after lapse of 9 years from the date of alleged termination that it is liable to be dismissed and that no relief was prayed for by the petitioner in the Reference as against the Second Respondent. The ultimate case is that the petition is hit by

Resjudicata and barred by limitation.

To substantiate his case, the petitioner himself came to the box to give evidence as PW.1 by filing an affidavit in lieu of his examination-in-chief reiterating the contents of the petition and specifically stating that he is entitled to all the terminal benefits in view of termination contrary to Section 25 F of the I.D.

Act. Exs. P1 and P2 are the copies of EPF slips for the years 2000-01 and 2001-02 respectively marked through PW1. During the course cross examination,

PW1 admitted that as per Exs. P1 and P2 documents the 2nd respondent is shown as employer and that there is no letter available with him to show that he worked in the 1st respondent company. He admitted that the 1st respondent company was already closed and is not existence. He categorically denied the suggestions that he worked under the 2nd respondent that there is no employee and employer relationship between himself and the 1st respondent that he had already taken his

PF amount and other amounts and that falsely the case is filed. It is elicited from

PW1 that he took the plea in the reference that the 2nd respondent took his resignation forcibly.

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Sri M. Pardha Saradhi, the Manager (HR) worked in Gudipallipadu plant from January, 2001 till June, 2003 gave evidence as RW1 by filing an affidavit in lieu of his examination in chief by iterating the contents of the counter of R1and specifically stating that there was no employer-employee relationship exists between the petitioner and R1. Exs. R1 to R6 were marked through RW1.

Ex. R1 is the copy of certificate of Registration of the 1st respondent

dt. 28-03-2000 of Gudipallipadu Plant. Ex. R2 is the copy of license

dt. 17-03-2001 of the 2nd respondent which will remain in force upto 16-03-2002.

Ex. R3 is the copy of agreement dt. 01-04-2001 in between the Respondent Nos.

1 and 2. Ex. R4 is the copy of Form-XXV submitted to ACL, Nellore along with covering letter. Ex. R5 is the copy of letter dt. 04-02-2004 of R1 sent to DCL,

Guntur informing that the petitioner was not employed directly ever since it had taken over the business. Ex. R6 is the copy of letter dt. 11-03-2004 of R1 sent to

DCL, Guntur informing that the petitioner and his batchmates submitted their resignations after settlement of their PF accounts. During the course of cross examination, RW1 stated that the loading and unloading workers were not the permanent employees and hence no such worker was taken by the 1st respondent.

RW1 deposed that the contract work to supply the loading and unloading workers was given to the 2nd respondent in the year 2000 and the contractor usually supplied the workers as per the requisitions given day wise or week wise. He denied the suggestion that R1 company supervised the work of the workers engaged by the contractor. He stated that the contractor himself supervised their work. He specifically stated that the information given by the 2nd respondent was to the effect that all the workers under the contract were submitted resignations at a time.

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On behalf of the 2nd respondent, Sri B. Venkata Rama Rao, the

Accountant of the 2nd respondent firm gave evidence as RW2 by filing an affidavit in lieu of his examination in chief by reiterating the contents of the counter of R2 and specifically stating that the petition is not maintainable and liable to be dismissed. Exs. R7 to R13 were marked through him. Ex. R7 is the copy of

Authorization letter dt. 09-04-2016 authorizing him to give evidence in the case.

Ex. R8 is the resignation letter of the petitioner dt. 04-01-2003. It shows that the petitioner, who was attending the work of loading and unloading for the three years prior to its date resigning to the job since he was unable to attend the works.

Ex. R9 is the Releaving letter dt. 05-01-2003 and it shows that the resignation of the petitioner was accepted w.e.f., 05-01-2003 and Gratuity amount of Rs.30,000/- was being released. Ex. R10 is the copy of postdated cheque for Rs.30,000/-

dt. 06-01-2003. Ex. R11 is the copy of letter dt. 05-01-2003 of the petitioner

requesting the 2nd respondent to make payment by way of cash instead of cheque since he was not having Bank Account. Ex. R12 is the voucher dt. 05-01-2003 showing that an amount of Rs.30,000/- was paid to the petitioner as Gratuity towards full and final settlement. Ex. R13 is the copy of the petition filed before the Conciliation Officer, Nellore by the petitioner and 21 others for resolving the dispute against the 1st respondent. During the course of cross examination RW2 specifically stated that the 2nd respondent obtained license from the Labour

Department in the year 2001 and supplying the workers to the 1st respondent since 01-04-2001. He stated that the 1st respondent company called for tenders for supply of workers but oral intimation was given to the 2nd respondent to supply the

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workers. He admitted that appointment letters were not given to the workers. He expressed his ignorance as to the payments made towards EPF contributions to the petitioner and others. While answering a specific question, RW2 stated that though the workers were supplied to the R1 company the supervision of the works was made by R2. He denied the specific suggestion that the signatures of the workers were taken on blank papers and that the resignation letters were fabricated. It is elicited from RW2 that whenever payment were made covering more than Rs. 50,000/- R2 used to issue cheques only.

As verified from the pleadings and the evidence let in before the court, the facts which are not in dispute are that the petitioner and some others attended loading and unloading works in R1 company when they were supplied by R2

Agency. The main question to be decided is whether there was employee and employer relationship in between the petitioner and R1 company. The learned counsel for the 1st respondent vehemently argued that unless the petitioner establish that he was having master and servant relationship with R1 company the petition is not maintainable. He cited several decisions of the Hon'ble Apex Court and other Hon'ble High Courts to substantiate his argument that the workmen employing by the 2nd respondent can not be the workers of the 1st respondent company. The Hon'ble Apex Court discussed detailedly the distinction between the contract of service and contract for service in the case of Dharangadhara

Chemical Works Limited and State of Saurashtra and others reported in 1957

I LLJ page 477. It was observed that there must exist the right in the master to

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supervise and control the work done by the servant not only in the matter of directing what work is to be done to establish that there was master and servant relationship. In another decision reported in 1985 II LLJ page 4 (The workmen of the Food Corporation of India Vs. M/s. Food Corporation of India) the Hon'ble

Apex Court held that the workmen employed by the contractor can not be the workmen of third party who engages the contractor to accomplish a particular reason and thereby no master and servant relationship exists. Similar view was taken by the Hon'ble Apex Court in the case of Employers in relation to the

Management of the Reserve Bank of India Vs. their workmen reported in AIR 1996 SC 1241. A clear cut distinction between a contractor and a workman was drawn by the Hon'ble Apex Court in the case of Chintaman Rao Vs. State of

Madyapradesh reported in AIR 1958 SC 388. If the analogy taken in all the referred to decisions is followed, it is to be doubted whether such master and servant relationship was in the existence in between the petitioner and R1 company.

The next point on which must argumentation was made by the Learned counsel for the R1 company is about maintainability of the application U/s. 2 A of the I.D. Act. The argument is that the adjudication U/s. 2 A is prescribed only as to the mode of discharge, dismissal, retrenchment or termination and that the question whether the contract labour was a ruse or camouflage can not be raised

U/s. 2 A by the individual contract labour. The said view was taken by the Hon'ble

High Court of AP in the case of Oil and Natural Gas Corporation Limited, KG

Project, Rajhmandry Vs. N. Satyanarayana and others reported in 2003 (3) ALD

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page 711. The court held that such workers can only approach U/s. 2 (K) to reference U/s. 10 (1) of the I.D. Act. The nature and relative scope of the disputes that may be raised U/s. 2 (A) of the I.D. Act and 2 (K) of the I.D. Act was decided in the case of Bharath Heavy Electricals Limited Vs. Anil and others by the

Hon'ble Apex Court reported in (2007) I SCC page 610. It was observed that

Section 2 A of the I.D. Act contemplates nothing more than to declare an individual dispute to be an Industrial Dispute and that it does not amend the defication of Industrial Dispute set out in Section 2 K of the Industrial Disputes

Act, 1947. What was observed by the court was that Section 2 A does not cover every type of dispute between an individual workman and his employer. To support the argument that dispute relating to a person who is not a workman is not an Industrial Dispute, the learned counsel for the 1st respondent relied on the decision of the Hon'ble Apex Court given in the case of workman of Dimakuchi

Tea Estates (Assam Chah Karmachari Sangha) Vs. Dimakuchi Tea Estates reported in 1958 I LLJ SC page 500. It was observed in the decision that the dispute relating to a person who is not a workman within the meaning of Section 2 (S) of the I.D. Act is not an Industrial Dispute and it may be a dispute within

Section 2 (K) of the I.D. Act. In the present case, the prayer made by the petitioner is to pass an order in respect of all the terminal benefits pleading that the termination is contrary to Section 25 F of the I.D. Act. It is not the request of the petitioner to order reinstatement. Unless the employee and employer relationship in between the petitioner and R1 is established, the question of petitioner taking shelter U/s. 25 F of the I.D. Act does not arise. The evidence and material

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available in the case only discloses that the petitioner was supplied by the 2nd respondent, who got an agreement with the 1st respondent to supply loading and unloading workers. In such case, the maintainability of the application U/s. 2 A of the I.D. Act against the 1st respondent is to be doubted.

The learned counsel for the petitioner vehemently argued that the very theory of resignation setup by the respondents is false that no payment made as pleaded and that the respondents have no right to alter the mode of payment without knowledge of the petitioner and without giving notice U/s. 9 A of the I.D.

Act. The documents filed by the respondent are clinchingly establishing that the petitioner submitted resignation letter and received the Gratuity amount in cash.The documents Exs. R8 and R11 can not be brushed aside lightly. The petitioner made a request through Ex. R11 to make payment by cash instead of cheque towards full and final settlement. Ex. R10 cheque number is also mentioned in Ex. R11 document. With the above documents and other documents relied on by the respondent, it is to be concluded that the petitioner had his final settlement with R2. To claim that he was the employee of R1 company, the petitioner relied on Exs. P1 and P2 documents which are only EPF slips.

Admittedly, the 2nd respondent is shown in both Exs. P1 and P2 documents as the employer. Even if evidence is available to show that there was contribution to ESI in the name of workman the same can not be taken as employee and employer relationship was established. The Hon'ble High Court of AP in the case of Deccan

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Chronicle (Represented by its Managing Partner T. Venkatram Reddy) Vs. G.

Pedda Reddy and others reported in 2004 (3) LLN page 916 has observed that the contribution to Employees State Insurance in the name of workman can not shown employer-employee relationship. Therefore, the documents Exs. P1 and P2 will not help the petitioner's case.

The another argument advanced on behalf of the petitioner is that the 1st respondent got obligation to employ the Labour of the Transferor company and therefore the petitioner who joined originally in the transferor company can make claim. The obligations of a company who got transfer from another company was discussed by the Hon'ble High Court of AP in the case of Bharath Coco-Cola

Bottling South East Private Limited, Vijayawada Vs. the Government of AP and others reported in 2002 (1) ALD page 103 (DB). Facts involved in both the present case and the case cited have got some similarities and in both the cases the

Coco-Cola Bottling Company was involved. There was transfer of a company in the cited decision by sale to another company. In the cited case the matter was decided when reference was made U/s. 10 (1) ( c ) and Section 10 D of the

Industrial Disputes Act. The Hon'ble Division Bench has observed that there is no obligation on the transferee company to employ the Labour of the Transferor company since no relationship of master and servant exists between transferee company and the erstwhile employees of the transferor company. The court held that the reference itself is not maintainable. Therefore, the petitioner has no claim against R1 even it is a fact that R1 company taken over the plant situated at

Gudipallipadu of Nellore District.

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On a careful consideration of all the facts and circumstances, it is to be held that the application U/s. 2 A of the I.D. Act is not maintainable against the 1st respondent. The very master and servant relationship in between the petitioner and R1 company was not established by the petitioner. Further, as rightly pointed out by the learned counsel for the 2nd respondent the approach of the petitioner is belated one. The contention of the 2nd respondent that the petitioner had submitted resignation letter and had full and final settlement by receiving Rs.30,000/- to be taken as established. In such circumstances, the request of the petitioner is not maintainable against both the respondents. Thereby, the petition will fail and the point to be decided against the petitioner.

In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in the open court on this the 23rd day of May, 2016.

Sd/-XXXX

PRESIDING OFFICER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent :

PW1 : K.Ravi. RW1 : M. Pardha Saradhi. RW2 : B. Venkata Rama Rao.

DOCUMENTS MARKED FOR PETITIONER

Ex. P1 : Copy of EPF slip for the year 2000-01.

Ex. P2 : Copy of EPF slip for the year 2001-02.

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DOCUMENTS MARKED FOR RESPONDENTs

Ex. R1 : Copy of Certificate of Registration of the 1st respondent dt. 28-03-2000.

Ex. R2 : Copy of license dt. 17-03-2001 of the 2nd respondent.

Ex. R3 : Copy of Agreement dt. 01-04-2001 in between the Respondent Nos. 1 and 2.

Ex. R4 : Copy of Form-XXV submitted to ACL, Nellore along with covering letter.

Ex. R5 : Copy of letter dt. 04-02-2004 of R1 sent to DCL, Guntur.

Ex. R6 : Copy of letter dt. 11-03-2004 of R1 sent to DCL, Guntur.

Ex. R7 : Copy of Authorization letter dt. 09-04-2016.

Ex. R8 : Resignation letter dt. 04-01-2003.

Ex. R9 : Resignation acceptance and relieving letter dt. 05-01-2003.

Ex. R10 : Copy of the post dated cheque for Rs.30,000/- dt. 06-01-2003.

Ex. R11 : Request letter dt. 05-01-2003.

Ex. R12 : Receipt of full and final settlement of Gratuity dt. 05-01-2003.

Ex. R13 : Copy of the petition filed before the Conciliation Officer, Nellore.

Sd/-XXXX

PRESIDING OFFICER

// TRUE COPY//

PRESIDING OFFICER

LABOUR COURT.