Subodh Kumar vs Presiding Officer Labour ...
2012 Latest Caselaw 4024 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 1.5.2012
 
								Delivered on 7.9.2012
 

 
Case :- WRIT - C No. - 38836 of 1998
 

 
Petitioner :- Subodh Kumar
 
Respondent :- Presiding Officer Labour Court-Ii Meerut And Anr
 
Petitioner Counsel :- Siddharth
 
Respondent Counsel :- C.S.C.,S.S. Nigam
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Siddharth, learned counsel for the  petitioner and Sri S.S. Nigam, learned counsel appearing on behalf of respondent no.2.

The writ petition has been filed challenging the award dated 24.2.1998 published on 31.7.1998.

The case of the petitioner workman is that he was employed on the post of Supervisor in the factory of respondent no. 2  from March, 1990 and on 1.2.1993 his services were terminated by the respondent no.2. The petitioner raised  industrial dispute after failure of the reconciliation proceedings, the State Government  made a reference under Section 4-A of the U.P. Industrial Disputes Act, 1947(hereinafter referred to as  the 'Act'). The disputed   reference  for adjudication is as follows:-

"Whether  the removal of their workman Subodh Kumar son of  Ilam Singh from  the Service by the employers on 01.02,1993 is unjust and illegal? If yes, then to what relief/benefits  is the concerned workman entitled to and with details?"

The  Adjudication case No. 172 of 94 was registered. The workman  filed his written statement through Union.  It was stated therein that he was employed  in the establishment  of respondent no. 2 as  Bottle  Washing Supervisor for more than  two  and half years and rendered continuous service but his services were terminated  with effect from 01.02.1993 orally without any order.   The act of respondent no. 2  in terminating the services of the petitioner comes within the meaning of  retrenchment and the benefit of Section 6-N of the  Act   should be given to him. The termination is void and illegal and the petitioner is entitled to reinstatement  with all back wages and  other consequential benefits.

The employer respondent no. 2  in their written statement  tried to set up a case that the petitioner  was not employed   by them and  he   is not covered under  the definition  of workman under  Section 2(Z)  of the  Act. It was further stated therein that the respondent  establishment is  registered under the  Factories Act and  other relevant Acts which  are applicable on the   workman factory.  The factory is also  registered under  Section 7(2) of the   Contract  Labour(Regulation and  Abolition) Act, 1970 and the  registration certificate was issued under the said Act. The contractors are employed  from time to time in the factory and the  workman was employed through the contractor. There was no relationship of employer and employee with the workers employed through contractor. The petitioner being  one of them, there was no question of termination of his services.  The additional issue was framed  after exchange of affidavits  between the parties  by the  Labour  Court which is as follows:-

"Whether there was  relationship of employer and Servant  between the concerned  workman (Subodh Kumar) and the employer? If no, then its  effects ?"

In support of his  case, the workman filed 15 exhibits (Ex.-W-1 to Ex.- W-15). The copies  of these  documents have  been annexed  as  annexure 1 to the writ petition.  The respondent  employer  filed  17 documents  namely, registration certificate issued under the Contract Labour Act,  attendance register  etc.  Statement of the workman was recorded alongwith  two other  employees.  By  the award dated 24.2.1998,  the reference was  decided against the petitioner  and it  was held that there was no employee-employer  relationship between  the workman and the respondent no.2.  The petitioner was not workman of the respondent  establishment and was employed  through  contractor as such industrial dispute  raised by  him cannot be  adverted to.

Sri  Siddharth, learned counsel for the petitioner submits that  award passed by the labour court is illegal and  is based on misreading of evidences  of the record.  The labour court has misconstrued the documents  namely exhibits W-5 and Ex. W-7. The  witness of the employer  has  failed to  corroborate the documents  Ex. W-5  to W-7 in his statement recorded  before the  labour  court. He  expressed his ignorance about   the name of the contractor who was given contract  of  washing bottles  during the period   in which the petitioner  was employed. Despite  the said fact, the labour court  on the basis of the statement of  witness of  employer has recorded  wrong  finding  that the petitioner was  not  direct  employee of the  respondent  employer.

Another submission is that the  petitioner  has  completed more than 240 days  in the  respondent  establishment.  The respondent  employer in paragraph 3 of the written statement stated that  they have  records of working of all the workmen employed by them directly and produced record of years  1994, 1995 and  1996 whereas  the record of relevant years  1990 to 1993 was withheld by them.  In case, the said record  would have been produced before the  labour  court, it  would have  established  the  engagement of the petitioner workman.  He  further  submitted that  adverse inference may be drawn  against the employer respondent for not producing the  best evidence  in their possession.  In support of his argument, he relied upon judgment of the  Apex  Court in H.D. Singh vs. Reserve Bank of India and others(S.C.) reported in 1985(51) FLR 494  and  in Sriram Industrial  Enterprises Ltd. vs.  Mahak Singh & others  reported in (2007) 4 SCC 94.

He  further submits that the  employers have  failed to discharge the burden laid upon them that they have not indulged  in unfair labour practice.  On burden of proof, learned counsel  for the petitioner relied upon  judgments in Amar  Chakravary & others vs. Maruti Suzuki India Limited reported in (2010) 14 SCC 471 and U.P. State Electricity Board vs. P.O. Lab Ct. Bareilly and others 1993(67) FLR 802.

Sri S.S. Nigam, learned counsel for respondent no. 2 drawn attention of the  court to  the written statement of the respondent employer which has been annexed as annexure CA-2 to the counter affidavit filed on behalf of respondent employer. In the  written statement, preliminary objection was raised  to the  effect that the petitioner workman was not  directly employed by the employer.  He was  never employed  as a Supervisor  or on any other post.  The employer  factory is engaged in manufacturing of  Indian made foreign liquor and for the purpose employer  engages a number of workers  whose  terms and conditions of employment  are   governed by set of standing orders implemented by the  State  Government  under  Section 3-B of the Industrial Disputes Act, 1947. The respondent employer also  engages contractors for various  jobs who in turn employ  their own workers for executing the contract. In some of the cases,  contractors as also the workmen are  given benefit of wages  through Provident  Fund, ESI etc. The relationship of master and servant  was  categorically denied  and it was stated that the  dispute raised by the petitioner  does not  come within the meaning of industrial disputes Act as he  is not workman within the  meaning of the  Act.

He further submits that rejoinder affidavit  filed on behalf of the petitioner employee in reply to written statement of employer before the labour court is on record  and is annexed as annexure CA-3  to the  counter affidavit.  A  categorical statement made  by the employer in paragraph  5 of the  written statement  has not been  replied in the rejoinder affidavit. The burden of proof to establish relationship of  master and  servant   was   upon  the  employee and he has  failed  to discharge the same. There is nothing on record to suggest that the   petitioner was   direct  employee   of the  respondent  employer.  The  plea of unfair  labour practice taken by the learned counsel for the petitioner  is  without any basis. 

Further submission is that the labour  court  after examining the documents and the oral  statement  of both the parties  had  adjudicated upon the additional issue  framed  by it as  to whether there was  an employer-employee relationship between the petitioner workman and the respondent employer.  The labour court while examining the  said  issue has  opined  that  burden of proof to establish the relationship of master and servant  was upon the workman. The workmen has failed to  produce any  documents  to establish the same. On the  other hand, a perusal of  Ex. W-5 and  W-7 shows that the employer while making complaints regarding working  of the petitioner wrote letters  to the petitioner and sent copies of the same to the contractors giving  warning to them  that in case  of any loss, the  same would be deducted  from their  bills.

The  labour court  after  considering all these documents had concluded that employment of workman was  through  contractor and  he was not  direct employee of the respondent  employer.  The labour  court further   considered the documents   submitted by the employers and the  submission that the establishment  was registered under the Contract  Labour Regulation Act, 1970.   The registration certificate contains names of contractor and the attendance register produced by the employer  contains names of  employees who are  in their  direct employment.  The labour  court  lastly concluded that the   the contention of the employer was corroborated by the documents namely paper no. W-5 and W-7 filed by the  petitioner employee.  The petitioner  employee  has  failed to  show that  he was not  employed  through  contractor and  there was master-servant  relationship.

On the question of  240 days of working   a finding of fact  has been recorded that the employee has not produced single document  establishing  his  contention.  Further,  since he  was  employed through  contractor, he is not  workman within the meaning of  the  Act, as such the period of working  in the establishment is  of no avail. 

Heard learned counsel for the  parties and perused the record.

From perusal of the documents, namely W-5 & W-7 and the written statement filed  on behalf of the employers and the employee, it is evident that the  case of the employer since its inception was that the  petitioner  is not  a workman  within the meaning of  Section 2(Z) of the  Industrial  Disputes Act.

In paragraph 5 of the  written statement filed by the employer it has been categorically  stated that the petitioner Subodh  Kumar son of  Ilam Singh was  never employed  as  Supervisor  or  on any other post   by the employers.  Paragraph 3 of the written statement  filed by the employee remained  unrebutted in the rejoinder affidavit filed by the Union on behalf of the employee which  is  annexed  as  CA-3  to the counter  affidavit filed by the employers.

In the rejoinder affidavit  filed on behalf of  the workman  in reply to the written statement filed by the employer, there is no denial  to paragraph  5 of the  written statement.  This apart, Ex. W-5 and  W-7 are  the letters  produced by the employee which shows that  they were  addressed to him and copy of the same was sent to the  Contractors with the warning  to  look into  the working of the petitioner and to ensure that no  complaints are found in future.  The names of the   contractor also finds  place in the  registration certificate under the Contract  Labour Regulation Act, 1970.

Further,  the petitioner employee in the  statement recorded in main examination had admitted that he  was engaged  in washing of bottles, checking  of seals, labeling and counting of the same.  He was also  doing the work of loading.  In his cross-examination, he had admitted that he was doing work mentioned in his main examination. He also  stated that in the  year  1990-91, the contract  of washing of bottles was given to   contractors whose names were mentioned in the  statement.  The work of loading and unloading of bottles was also  being carried out by the contractors.

In the writ petition as also in the rejoinder affidavit, the petitioner employee has  failed to make out any case  contrary  to what he had  stated on  oath before the labour  court in his statement recorded there.  The contention that statement of employer's witness J.P. Tripathi does not corroborate the  documents  Ex. W-5 and Ex. W-7 is misconceived. 

A careful perusal of the documents filed before the  labour  court  clearly establishes that the petitioner was employed  through  contractor and  moreso  in view of  his own admission that the work of  washing of bottles,  loading, unloading which was  being done  by him in the  respondent establishment  was entrusted to him through contractors.

There cannot be  any dispute  to the well settled  principle of law  that  in any proceedings the burden   to prove  a fact lies on the party which  pleads the same and not  on the  party who denies it.  The Apex  Court in Kanpur Electricity  Supply  Company Ltd. vs. Shamim Mirza  reported in (2009) 1 SCC 20 has held in paragraph  20 as under:-

"It is trite that the burden to prove that a claimant was in the employment of a particular management, primarily  lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine  the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative  effect of the entire material placed before the adjudicatory forum by the  claimant and the management. "

Further, in General Manager, (OSD), Bengal Nagpur  Cotton Mills, Rajnandgaon vs.  Bharat  Lal and  another reported in (2011)1 SCC 635,  the test to determine as to whether  the contract labourers  are  direct  employees of  the  principal employer  has been laid down in paragraph  10 which  is quoted below:-

"10....Two of the  well-recognised  tests to find out  whether the contract  labourers are the direct employees of the principal employer are : (i) whether  the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer  controls and supervises the work of  the employee...."

The Apex  Court  has considered the  expression "Control and  Supervision" in the context of direct labour  as was  explained in  International Airport Authority of  India vs. International Air Cargo Workers' Union and another reported in (2009) 13 SCC 374. Relevant paragraphs 38 and 39 of the  said judgment  are quoted below:-

"38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out  whether the contract labour agreement is a sham, nominal and is a mere camouflage. For Example, if the  contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not  make  the worker  a direct employee of the principal employer, if the salary is paid  by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor. "

"39. The principal employer only controls and directs the work  to be  done by a contract labour, when such labour is assigned/allotted/sent  to him. But  it is the contractor as employer, who chooses whether the worker is to be  assigned/allotted  to  the principal employer or used  otherwise. In short, worker being the employee of the contractor, the ultimate supervision and  control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the  contractor assigns/ sends  the worker  to work under the principal employer, the worker works  under the supervision and control of the principal employer but that is secondary control.  The primary  control is with the contractor."

It is settled law that the court  can find as to whether the  contract between the principal  employer and the  contractor is a sham, nominal or merely camouflage to defy an employee. In the event, it  finds the same,  it  can  grant relief  to the employee  by holding that he is  in direct employment  of principal employer.

In the instant case,  there is nothing on record  to  suggest   that  the petitioner was either direct employee of the respondent  employer or the contract between the principal employer & the contractor is sham. 

Now considering the contention of the learned counsel for the petitioner  that adverse inference  should be  drawn  against the employer  for non-production of attendance register, it cannot be  accepted  in view of the own  statement of the  employee  who had  accepted that the work which was  being done  by him in the  respondent establishment, was carried out through contractors engaged by the  establishment.

There is no other circumstance or reason for not accepting the documents  filed by the petitioner  which contain the names of  contractors who were engaged by  the respondent  employer.

In the judgments relied upon by the learned counsel for the petitioner on the question of adverse inference in the case of H.D. Singh vs. Reserve Bank of India and others(S.C.) reported in 1985(51) FLR 494  and  in Sriram Industrial  Enterprises Ltd. vs.  Mahak Singh & others  reported in (2007) 4 SCC 94, the facts  and circumstances of the  cases are different  from that of the present case. In H.D. Singh (supra) the employees  were  daily rated workers and there was no dispute of employer-employee relationship.  In the case of Sriram(supra) the respondents were admittedly the workmen of the  appellant establishment and  only dispute therein was  as to whether  they had worked for more than 240 days and entitled for reinstatement.

The other two judgments  on the point  of burden of proof relied upon by the  learned counsel for the petitioner are not applicable in the facts and  circumstances of the case.  In case of  Amar  Chakravary (supra), on the question  of dismissal of workmen  without holding enquiry, the  Apex  Court  held that  burden to prove the fact of misconduct  by the workmen lies upon the employer and not on the workmen who denied it. It was held that the workman  cannot be asked to prove that he  has not committed any act  amounting to  misconduct. The ratio of  judgments laid down in the said judgment is of no benefit  to the  petitioner in the present case, as the burden of  proving the fact of employment  i.e. master-servant relationship  lies upon  him as he asserts the same in affirmation while the employer denied it.  In the case of U.P. State Industrial (supra), the  court  did not  rely upon the statement of the employer for the reason that  pleadings of the Electricity Board  in the  written statement were sketchy, denying the averment. The labour court further  noticed that the  names of contractors have not been disclosed.  The  said case has been decided in its own  facts and  circumstances and is of no benefit  to the petitioner.

In the instant case, the employer has  come out  with the clear  assertion that the factory was registered under the Contract  Labour (Regulation & Abolition) Act, 1970. The registration certificate contains the names of  the contractors who were engaged  to carry  out the work of washing of bottles, loading and unloading etc.  The petitioner  workman admitted in his statement that he was  doing the work of  cleaning of bottles, labelling, loading  etc. and also admitted that the contractors were engaged for the purpose.  The documents filed by the petitioner, namely W-5 and W-7 contain names of  contractors.

The findings  recorded by the labour court are  based on the consideration of the  evidences on record and in view of the  above discussion,  the inevitable conclusion  is that  labour  court  has rightly held that onus to prove  master-servant relationship was upon the petitioner and he has failed to discharge the same, and  there was no master-servant relationship.

There is no question of  drawing  adverse inference  against the  employer, as the working of more than 240 days  in the establishment is of no consequence.

For the foregoing  reasons, the award passed by the labour court dated 24.2.1998 is  upheld. The writ petition lacks merit and is accordingly dismissed.

Order Date :-7.9.2012

P.P.