GIRISH CHANDRA GUPTA, J. - (1.) THE subject-matter of challenge in this writ petition is an order dated December 13, 2005 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 and also a notice dated December 30, 2005 issued by the Controlling Authority under the Payment of Gratuity Act, 1972 directing the petitioner to pay a sum of Rs. 8,80,499.87 paisa together with admissible interest to Shri Ajit Kumar Roy and 115 others namely the respondents Nos. 6-121 herein. THE respondents Nos. 3 and 4 are the Steel Authority of India Limited and its Assistant General Manager. THE respondent No. 5 is the State of West Bengal and the respondents Nos. 1 and 2 are the authorities under the Payment of Gratuity Act, 1972. THE case of the petitioner briefly stated is as follows:- THE petitioner Sailen Seth, carrying on business under the name and style of Seth and Associates, undertook the job of handling of iron and steel materials at the home sales stockyards of the Steel Authority of India Limited at Durgapur for the period between May 14,1984 and December 31,1986 A further contract for a period of 5 years commencing from January 1, 1987 was entered into between the parties the duration whereof was extended by mutual consent upto March 31, 1992. Further case of the petitioner is that although the handling contractors were changed from time to time the labour force working under different contractors continued to remain same. After the contract between the petitioner and the Steel Authority of India Limited came to an end the labourers raised their grievance as regards non-payment of gratuity, THE petitioner's consistent case has been and still is that he is not liable to make any payment on account of gratuity. THE Steel Authority of India Limited withheld a sum of Rs. 3,16, 858.50 paisa from out of the money payable to the petitioner because of the pendency of the aforesaid claim. A certificate for recovery of the aforesaid sum of RS.8,80,499.87 paisa was issued against the petitioner which was challenged in this Court by a writ petition which was registered as CO. 14303 (W)/1995. On September 12, 1995 a conditional interim relief was granted to the petitioner subject to his furnishing a bank guarantee for a sum of RS. 4 lakhs which the writ petitioner duly furnished. On October 9, 2001 the writ petition was dismissed on the ground that the impugned order was appealable under Section 7(7) of the Payment of Gratuity Act. THE petitioner applied for recalling the order which culminated in an order dated March 13, 2003 by which the petitioner was directed to deposit the balance amount in cash. Aggrieved by the aforesaid order the petitioner preferred an appeal. THE Appellate Court disposed of the appeal by an order dated September 3, 2003 by which the Steel Authority of India was directed to release the amount to the petitioner which had been withheld by them. THE petitioner duly recovered the amount from the Steel Authority and furnished a further bank guarantee for RS. 4,80,500/- in addition to the one for RS. 4 lakhs already furnished in favour of the Controlling Authority, Durgapur. THE appeal was thereafter heard by the Appellate Authority and the impugned order was passed on December 13, 2005
(2.) THE sum and substance of the submissions made by Mr. Gupta, learned senior Advocate appearing for the petitioner is that there is no employer-employee relationship between the petitioner on the one hand and the respondents Nos. 6-121 and therefore the petitioner is not liable to make payment, of any gratuity. Mr. Das, learned Advocate appearing for the respondents Nos. 6-121 has disputed this submission. So did Mr. Bhattacharya, learned Advocate appearing for the Steel Authority of Postal Page No. 85 India Limited. It is not the contention of Mr Gupta that no gratuity is payable. His contention is that the gratuity is not payable by the petitioner and same is payable by the Steel Authority of India Limited which the latter has disputed. Mr. Gupta drew my attention to sub-section (3) of Section 1 of the Payment of Gratuity Act which provides as follows: "It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months: (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification specify in this behalf."
(3.) MR. Gupta contended that establishment contemplated by Clause (c) of sub-section 3 of Section 1 is the establishment of the Steel Authority of India Limited. He then drew my attention to Clause (f) of Section 2 of the aforesaid Act wherein the expression 'employer' is defined as follows: "'employer' means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop- (i) belonging to, or under the control of the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has. been so appointed, the head of the Ministry or the Department concerned, (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority, (iii) in any other case, the person, who or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing.director or by any other name, such person." Mr Gupta contended that one of the factors for deciding as to who the employer is, is to ascertain as to who has the ultimate control over the activities of the establishment. He in lis regard drew my attention to the judgment in the case of Hussain Bhai v. Alaith Factory Tozhilali Union, AIR 1978 SC 1410 : (1978) 4 SCC 257 : 1978-II-LLJ-397 wherein the fllowing view was adopted at p. 398 of LLJ: "5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce-goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the worker's subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38-39-42, 43 and 43-A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances." ;