Bhel Shiksha Niketan Thru Secy ... vs Dy Labour Commissioner Jhansi And ...
2017 Latest Caselaw 4058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 17.5.2017
 
Court No. - 18
 
Case :- WRIT - C No. - 45166 of 2005
 
Petitioner :- Bhel Shiksha Niketan Thru Secy P.S. Chopra
 
Respondent :- Dy Labour Commissioner Jhansi And Others
 
Counsel for Petitioner :- Sunita Agarwal,Abhishek Mishra,K.N. Mishra
 
Counsel for Respondent :- S.C.,V.K. Goel,Vijay Singh Sengar
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner, which is a school run by registered society in Jhansi challenging the award dated 22.2.2004 of the Presiding Officer, Labour Court (IV) U.P, Kanpur, (herein after referred to as respondent NO.2) in Adjudication Case No. 39 of 2003, wherein the Labour Court has allowed the claim of one Shri Ram Babu son of Shri Pancham, holding that his services were illegally terminated by the petitioner on 10.4.2001 and that he is entitled to reinstatement with continuity in service and full back wages.

2. The case of the petitioner as setup in the writ petition is that the School was established with some grants from Bharat Heavy Electricals Ltd. Company, which has one of its Manufacturing units at Jhansi, only to provide better educational facilities to the wards of its employees and to the children of the neighbourhood on an economical basis. It is the case of the petitioners that one Shri Ram Babu (respondent No.3) raised an industrial dispute where after conciliation proceedings failed, the matter was referred to the Labour Court at Kanpur. The reference order of the Government dated 30.12.2002 stated as followings:-

"Whether the employers have illegally terminated the services of Shri Ram Babu son of Shri Pancham (IVth class employee) w.e.f. 10th April, 2001 and if yes, then to what relief the workman was entitled to ?"

3. The claim petition of the respondent No.3 has been filed alongwith his counter affidavit and from a perusal of the same, it is evident that the workman had alleged that he was working as Class-IV employee in the capacity of a sweeper in petitioner's school since 1993 on a salary of Rs.2,100/- per month. Since, the respondent No.3 alongwith other employees were working regularly but were not being given facilities available to regular employees, they made a representation demanding Bonus, paid leave, medical benefits, uniform etc. Annoyed by the said representation, the authorities of the School on 10.4.2001 directed the respondent No.3 to go out and look for some other job. The juniors to the respondent No.3 were still working in the school as Class-IV employees. No notice or charge-sheet was given to the respondent No.3, and also no retrenchment compensation, hence his termination was illegal. A prayer was made for reinstatement w.e.f. 10.4.2001 with full backwages and other consequential benefits including continuity of service.

4. On 26.4.2003, a written statement was filed under the signature of the Principal of the School saying that the respondent No.3 was never engaged by the School. It was contended in the said written statement (filed as Annexure-3 to the writ petition) that there was no master and servant relationship in between the management of the school and the respondent No.3 in the month of March and April, 2001, and therefore it could not be said that the services of respondent No.3 were terminated by the management w.e.f. 10.4.2001. No cause of action arose on 10.4.2001 and therefore there was no reason to entertain the said reference by the Labour Court.

5. It was alleged that the School has its own regular staff, which is engaged through proper appointment orders and as and when any requirement of intermittent nature arises with regard to Class-IV employees, then there was a licenced contractor of BHEL M/s R.R. Constructions (arrayed as opposite party No.2 in the Adjudication Case) who was asked to provide labour on contract basis. The contractor had engaged Ram Babu the respondent No.3, and he was paying salary and even Provident Fund amount was being deducted by the contractor alone. It was alleged in the written statement that as per information received from the contractor that services of the respondent No.3 were not terminated even by the contractor. Respondent No.3 on his own absented himself from duty continuously w.e.f. 11.4.2001.

6. A rejoinder was filed by respondent No.3 in which he alleged that he was appointed by the management of the School on 25.6.1993 and continued to work for the School till 10.4.2001. M/s R.R. Constructions the alleged contractor, was introduced in the said industrial dispute by the management only to shirk its responsibility. The respondent had sufficient proof in his possession like wage slips and statement of pay-bill furnished by the school to the Bank etc. to show that respondent No.3 was engaged by the School itself. The contractor mentioned at Serial No.2 of the reference order had been wrongly impleaded at the instance of the School, which alone was his employer.

7. The alleged contractor had not chosen to file any written statement. With regard to allegation that the School had a prescribed procedure for engagement of regular teaching and non-teaching staff, it was averred that the post on which respondent No.3 was employed was not such a post which required interview or any prescribed procedure to be followed. Only physical fitness and capability for cleaning the School as sweeper was seen at the time of his engagement. The respondent No.3 had reported for duty on 10.4.2001, but the Principal of the School after taking some work for a few hours, on 10.4.2001 itself instructed the respondent No.3 not to come to the School again and to seek a job elsewhere.

8. During the course of trial in support of his claim, the respondent No.3 produced wage slips upto the year 1997-1998 marked as Exhibit-1 to 11; A copy of the pass book of the bank account, which was opened in State Bank of India under the joint names of Shiksha Niketan, BHEL Jhansi and Ram Babu with Account No.0110009172; A copy of the statement of the pay-bill of its employees sent by the School for payment of salary into their account with details of employee number, account number, name and net pay due, for the month of July 1997 was also filed.

(Copies of the first page of pass book showing the account in the joint names of Shiksha Niketan, BHEL and Ram Babu and statement of pay-bill for July, 1997 have been filed as Annexure-3 and 4 to the counter affidavit of respondent No.3 in this writ petition as well).

9. Heard Shri Abhishek Mishra, counsel for the petitioner and Shri Vijay Singh Sengar, counsel for the respondent workman. It is the case of the petitioners as argued by their counsel that there was no credible evidence produced for the respondent No.2 to come to the conclusion that the respondent No.3 was engaged by the School at any point of time. The specific case of the School was that teaching staff as well as other clerical and ministerial staff were engaged on a regular basis by the School but with respect to other Class-IV employees, sweeper etc., there was a registered contractor of BHEL by the name of M/s R.R. Constructions (respondent No.4), who used to supply labour as and when required. Respondent No.3 was engaged by the contractor as and when need arose and work was taken by the contractor from the respondent No.3 and that Respondent No.3 did not sufficiently discharge the burden, which lay initially upon him to show that he had been engaged by the School. In the oral evidence respondent No.3 had admitted before the respondent No.2 that no written appointment letter was given to him by the School. He had also admitted that the School had initially given him salary through bank account for which wage slips were also issued but for the last two or three years of his engagement, the School had stopped giving wages through bank account. As to who gave him wages after they were stopped by the School and who had engaged him for the last 2 & 3 years was not disclosed by the respondent No.3. There was an admission in his oral statement that for the last few months, the respondent No.3 had not got any wages from the contractor, which amounted to an admission of the fact that he was employed by the contractor.

10. I have considered the rival submissions of the learned counsel for the parties, much stress has been laid by the counsel for the petitioner on the oral statement of the respondent No.3, where he stated "mujhe aakhir me kuch mahine tak thekedar se vetan nahi mila". However, the said statement has to be read in the context of the whole statement of the respondent No.3 where in he has stated that in the original application before the Conciliation Officer he had not made the contractor a party as he was never engaged by the contractor. It is only on objections being filed by the School that he was an employee of the contractor that in the case referred by the Conciliation Officer to the State Government and in the Reference order thereafter the contractor was arrayed as one of the employers. At the time of impleading the contractor though, he had not raised any objection. No appointment order had been given to him by the School but he was engaged by the Principal and Secretary of the School in June 1993, and since he alongwith eight others had filed a representation for giving benefits admissible to regular employees like bonus, earned leave etc., the management of the School illegally terminated the service of the respondent No.3 and two others i.e. Kali Charan and Daya Ram. The wages of respondent No.3 were disbursed through the Bank and he took out his wages through the pass book issued by the Bank, the Bank account was opened through the School Management. The School management sent a wage-sheet / pay-bill to the Bank of all its employees and then payment was made in their accounts by the Bank. The Principal and Secretary of the school used to write slips on the basis of which medicines were issued from the Hospital attached to BHEL campus. Whenever any function was held group photograph was taken in which the respondent No.3 was also allowed to participate. Respondent No.3 further stated that before being disengaged, for the last few years i.e. from the year 1998-1999, the School had stopped giving wages through the bank account. In the last few years he was not sure as to who made the payment of his wages but the wages were disbursed from the School office, on wage slips, some of which he had filed as evidence. He was illiterate and therefore not clear as to who was responsible for making payment of salary from the year 1998 onwards to the year 2001 till the time of his termination. The application for giving regular benefits as admissible to regular employees was made by the respondent No.3 along with eight other persons in 1998-1999 of which three were disengaged including him. There was no other documentary evidence available besides the ones, he had filed to show that he was given wages by the School.

11. I have gone through the documentary evidence filed by respondent no.3 along with his counter affidavit to the writ petition. It is clear from the extract of the first page of the passbook which has been filed by the respondent no.3 that his account was got opened in the Bank under the joint names of Shiksha Niketan and Ram Babu. This account could not have been opened under the joint names of respondent no.3 and the school, unless the school had sponsored, the opening of account of its employee.

12. The case of the respondent no.3 is that he was working as class-IV employee in the school. In those days, it was not possible for a poor and illiterate person like the respondent no.3 to get a Bank account easily opened in a nationalised Bank like State Bank of India in his joint name along with that of the School. This clearly shows that the respondent no.3 was in fact an employee of the school. This fact is also buttressed by the copy of the wage slips / pay bill of employees of the school submitted by the Principal and Secretary of the school for the month of July 1997 to the Bank concerned for release of wages / salary of its employees. The account numbers and employee numbers in the pay bill of July 1997 clearly show that the copy filed by the respondent no.3 before the respondent no.2 was not a forged document. The school has not disputed the pay bill in the evidence produced before the respondent no.2. In group photograph also the respondent no.3 was allowed to participate. Unless he was treated as staff under employment of the school, he could not have been allowed to participate in group photograph taken at various occasions by the School Authorities. The evidence produced by the respondent no.3 being impeccable and undisputed thus go to show that the respondent no.3 was employed by the school.

13. The respondent no.2 has correctly drawn inference in favour of respondent no.3 looking to the undisputed evidence produced by him that after 1998-1999 when the respondent no.3 along with other employees had made a representation for grant of benefits admissible to regular employees, instead of making their payment through the Bank, payment was started to them from school office. The school management was aware that an industrial dispute could be raised by such employees asking for their rightful claim and therefore, documentary evidence of the respondent no.3 and persons like him working in the school was avoided.

14. I do not find any factual infirmity in the order of the Labour Court. If the school management was correct, it could have produced the contract entered into between the school and R.R. Contractors to supply class-IV employees to the school. In case there was no such contract in existence between the management of the school and R.R. Contractors, but if such a contract was in existence between BHEL Manufacturing Unit at Jhansi and R.R. Contractor, then the Committee of Management of the School also had responsible officers of BHEL Manufacturing Unit as its ex-officio members, and the school could have requested BHEL Manufacturing Unit for a copy of the contract between BHEL Manufacturing Unit and R.R. Contractor. It was alleged by the School Management that they had engaged a Controller to supply labour to the school in case of intermittent need or to meet administrative exigencies, the burden of proof lay upon the school manager to prove its case. Unfortunately the management did not bring any evidence before the respondent no.2 to show that the respondent no.3 was an employee of Contractor and had been lent to the school on various occasions to meet out administrative exigencies.

15. Having found no factual infirmity in the judgment of the respondent no.2, I also do not find any legal infirmity in the same in view of law settled by the Hon'ble Supreme Court in the case of Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari 2005 (10) SCC 792 in that case. The Bank had alleged that it had not employed the workman directly and there existed no relationship of employer and employee between it and the respondent therein and in nationalised Banks there are Rules and Regulations, and appointments had to be made through a selection process. No such selection or appointment of the respondent was made. The engagement of the respondent therein was by one of the Executives of the Bank but salary was being reimbursed by the Bank. The Hon'ble Supreme Court however disapproved the Bank's case that the workman concerned had not discharged the initial burden of proof of his being an employee of the Bank by observing thus:-

"-----while there is no doubt that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman, who claims to be a workman. The degree of such proof so required, would vary from case to case. In the instant case, the workman has established the fact which, of course, has not been denied by the bank, that he did work as a driver of the car belonging to the bank during the relevant period which come to more than 240 days of work. He has produced 3 vouchers which showed that he had been paid certain sums of money towards his wages and the said amount has been debited to the account of the bank. As against this, as found by the fora below, no evidence whatsoever has been adduced by the bank to rebut even this piece of evidence produced by the workman. It remained contented by filing a written statement wherein it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the employee of the executive concerned and not that of the bank; none was examined to prove the scheme. No evidence was led to establish that the vouchers produced by the workman were either not genuine or did not pertain to the wages paid to the workman. No explanation by way of evidence was produced to show for what purpose the workman's signatures were taken in the Register maintained by the bank. In this factual background, the question of workman further proving his case does not arise because there was no challenge at all to his evidence by way of rebuttal by the bank.-----"

16. The judgments rendered in the case of Range Forest Officer vs. S.T. Hadimani, Punjab National Bank vs. Ghulam Dastagir and M.P. Electricity Board vs. Hari Ram were distinguished by the Hon'ble Supreme Court by holding that such judgments only laid down that initial burden of establishing the factum of workman having continuously worked 240 days in a year rests with the workman and in the case before the Court, this fact had been established by evidence produced by the workman.

17. In the case of R.M. Yellatti Vs. Assistant Executive Engineer reported in 2006 (1) SCC 106, the Hon'ble Supreme Court relying upon Manager, Reserve Bank of India vs. S Mani; Municipal Corporation, Faridabad vs. Siri Niwas (supra); and Range Forest Officer vs. S.T. Hadimani (supra); and Rajasthan State Ganganagar S. Mills Ltd. vs. its Workman (supra) has held that initial burden of proof lay upon the workman that he had worked for 240 days in a given year. This burden is not discharged only upon the workman stepping in the witness box and making a statement on oath. This burden has to be discharged by the workman adducing cogent evidence both oral and documentary. Only affidavits or self serving statements made by the claimants / workman will not suffice in the matter of discharge of burden of proof.

18. The aforesaid judgment also further laid down that mere non-production of muster rolls per se without any plea of suppression by the claimant / workman will not be a ground for the Tribunal / Court to draw adverse inference against the management and the High Court under Article-226 of the Constitution will not interfere with concurrent findings of fact recorded by the Labour Court unless they are perverse.

19. In case, the workman by stepping into the witness box and by producing documentary evidence has been able to prove that he was employed for 240 days in the preceding year, the rebuttal from the side of the management should be proved also. The management was duty bound to produce before the Labour Court, the nominal muster rolls for the relevant period particularly when it was summoned to do so. The burden of proof having shifted upon the employer, it was not properly discharged by it and therefore adverse inference was rightly drawn by the Labour Court and its finding was affirmed by the learned Single Judge.It was further held in R. M. Yellati that the Division Bench of the High Court upturned the finding recorded by the Labour Court without correctly appreciating the whole issue. The Division Bench should not to have interfered with the concurrent findings given by the award of the Labour Court and the judgments of the learned Single Judge. The appeal made by the workman was allowed holding that full opportunity was given to the management to produce its record by the Labour Court, but the entire record was not produced despite the management being asked to do so by the Court concerned. Having deliberately suppressed evidence which only it could have produced relating to nominal muster rolls, it could not take the benefit by the judgments cited it.

20. Under Article 226 of the Constitution Only limited jurisdiction is exercised by this Court with regard to finding of fact recorded by the Labour Court. The school management has not been able to show any perversity in the findings recorded by the Labour Court. In view of law laid down by the Hon'ble Supreme Court with regard to burden of proof, as discussed herein above, the school management had been unable to make out a case.

21. The writ petition is dismissed as devoid of merits. No order as to costs.

Order Date :- 07.09.2017

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