Tapen Sen, J. - (1.) REFERENCE be made to the Order dated 05.07.2011 by which W.P. No. 17554(W) of 2010 which was being listed along with this case was separated on the prayer made by the learned Counsel appearing by the parties. Accordingly, this Writ Petition is being dealt with independently as arguments have been closed and concluded in the said case. For the convenience of parties, Order dated 05.07.2011 is quoted below: Arguments have been concluded in W.P. No. 20403(W) of 2010. Although there was an Order dated 10.02.2011 that the other Writ Petition be listed together being W.P. No.-17554(W) of 2010, it is now stated by both the learned Counsel that the said other Writ Petition be taken up on some other day. Accordingly, let it be listed after ten days under the same heading. So far as W.P. No. 20403(W) of 2010 is concerned, since arguments have been concluded, Judgment is reserved.
(2.) MR. Jayanta Dasgupta has appeared for the Respondent No. 9 and he had stated on 04.10.2010 that he would not file any affidavit in this case. The Order dated 04.10.2010 is as follows: Let this matter be listed along with W. P. No. 17554(W) of 2010 which has been listed at Serial No. 335 today for extension of the interim Order and in which MR. Jayanta Dasgupta appears for the Respondent No. 9 (the Workmen represented by Weather Control Workers Union). However, in the instant case i.e. W.P. No. 20403(W) of 2010, there is no representation on behalf of the Respondent No. 9 but MR. Jayanta Dasgupta states that if a copy of the said Writ Petition is served upon him then he will put in his appearance on behalf of the said Respondent No. 9 MR. Jayanta Dasgupta further states that he is not interested in filing any Affidavit. Under such circumstances, let both the Writ Petitions be placed together for hearing on 25th November, 2010. Subject to an application for certified copy being made and proof in support thereof being furnished, let a plain photocopy of this Order, duly counter-singed by the Assistant Registrar (Court), be handed over to the learned Counsel for the Parties, on usual undertakings. The Writ Petitioner, M/s. Weather Control has challenged the award dated 30.04.2010 passed by the learned Industrial Tribunal (5th Court) in Case No.-VIII-46/1995 whereby and whereunder it was directed that instead of reinstating the Respondent No.-9, it would be just and proper to direct the Petitioner to pay compensation for damages caused to him to the extent of Rs. 3,00,000/-(Rupees three lacks) within one month from the date of passing of the award. The Petitioner has also prayed for an Order commanding upon the Respondents to explain as to why the Order of reference dated 27.02.1995 be not itself be declared to be bad and accordingly, set aside.
(3.) THE facts of this case are that M/s. Weather Control is stated to be a proprietorship firm owned by one Bijan Bose. On account of its technical know how and expertise, it entered into contracts for maintenance, servicing and repair of air conditioners, air coolers from various Government concerns/Offices against tenders and got the job done through various small and independent concerns on job contract basis. It is the further case of the Petitioner that one such independent concern was M/s. Cold Draft and M/s. Cooling Service. It is its further case that when the Petitioner assigned its jobs to any of the small Firms as sub-contractors, they would engage their men for executing the jobs. THE Petitioner has stated that it is however not concerned with the persons deputed by these sub-contractors and have no liabilities in respect of them and who are engaged by such sub-contractors. It is the further case of the Petitioner that one of the sub-Contractors namely M/s. Cold Draft, is a proprietorship Concern of one Supriya Ghosh. Since Supriya Ghosh could not secure sufficient business to maintain persons working under him, he therefore requested the Petitioner to assign jobs to him as an when required and it was on that basis that the Petitioner Firm assigned jobs to the said M/s. Cold Draft from time to time for execution of its own works and for which, they received money against Bills submitted by them to the Petitioner. This has been stated in Para-8 of the Writ Petition and in Para-9 the Petitioner has stated that M/s. Cold Draft used to generally send Mihir Kumar Pal (Respondent No.-9) for executing the jobs. It has further been stated that the Respondent No. 9 used to visit the sites and he became accustomed with the day-to-day affairs of the Petitioner Firm as he used to come to its Office for executing the jobs assigned to it. However, he used to get his salary from his own employer namely M/s. Cold Draft. The Petitioner has further stated that taking advantage of the aforesaid situation, the Respondent No. 9 intentionally wrote letters to the Petitioner alleging that he was their employee since 01.04.1992 and that he had been forcibly terminated from his service with effect from 17.03.1983. The Petitioner has stated in Para-12 that the question of the Petitioner being taking back in service did not arise at all because he was not its employee. They have further stated that when the Petitioner did not accede to his request, the Respondent No. 9 made a false complaint before the Assistant Labour Commissioner, Government of West Bengal on 17.05.1993 requesting that steps be taken for his reinstatement in service and for compensation for enforced termination. The Petitioner has submitted, with reference to the payment vouchers brought on record vide annexure P-4 series, that they are all debit Vouchers of wages in favour of the Respondent No. 9 which go to establish that he was an employee of M/s. Cold Draft. The Petitioner has further submitted that by a letter dated 10.02.1994, the Assistant Labour Commissioner, Government of West Bengal asked the Petitioner to file his Comments with regard to the termination of service of the Respondent No. 9 and as such, by their reply dated 10.03.1994 (Annexure P-5), the Petitioner stated that the Respondent No. 9 was not its employee and that there was no employer employee relationship and that it was M/s. Cold Draft which used to pay wages to him @ 700/- per month and this could be verified by calling the said M/s. Cold Draft. They also submitted that the contentions of the Respondent No. 9 were baseless. It is stated that the dispute could not be solved as conciliation proceedings failed whereafter, an Order of reference was made on 27.02.1995 before the Industrial Tribunal (5th Court), West Bengal to decide/adjudicate the following issues:- i) Whether the termination of service of Sri Mihir Kumar Paul is justified? ii) What relief, if any, is he entitled to ? In the said Proceedings, Mihir Kumar Paul filed his Written Statement vide Annexure P-7 and the Petitioner also filed its Written Statement vide Annexure P- 7.;