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Dugdha Utpadak Sahkari Sangh Ltd., Moradabad v. Lalloo Singh And Others - WRIT - C No. 23859 of 2002  RD-AH 1785 (22 December 2004)
Hon'ble Rakesh Tiwari, J
Heard Sri Shesh Kumar learned counsel for the petitioner and Ms. Sarita Jhingan, holding brief of Sri P.C. Jhingan learned counsel for the respondents. Since common questions of facts and law are involved in both the writ petitions, they are being decided by this common judgement with the consent of learned counsel for the parties.
Both these writ petitions have been instituted by the petitioner against the judgement and awards passed by the Labour Court, Rampur in Adjudication case Nos. 105 and 106 of 1995 by which Lalloo Singh and Mahesh Kumar respectively have been directed to be reinstated by treating them in continuous service w.e.f. 29.10.1993 and 24.11.1993 respectively with all consequential benefits.
The petitioner- Dugdha Utpadak Sahkari Sangh Ltd. Dalpartpur, District Moradabad is a co-operative society. It is represented through its General Manager Provincial Co-operative Dairy Federation which is an apex body of all the Milk Unions of the State. The Milk Unions constituted at the district level work independently.
CASE OF WORKMAN (LALLOO SINGH)- ADJUDICATION CASE NO. 105/1995
Lalloo Singh- respondent no.1 in Civil Misc. Writ No. 23859 of 2002 raised an industrial dispute which was registered as Adjudication Case No. 105 of 1995. It was alleged that he was engaged as Lab Attendant by the petitioner and had worked continuously as such for a period of about four years. The case of the respondent Lalloo Singh before the Labour Court that he had been working since 1990 on the post of Lab Assistant in the petitioner establishment at Dalpatpur and worked till November, 1993. He was appointed as Lab Assistant by the then Manager one Sri Paliwal. There was a separate attendance register in the laboratory. He used to sign the attendance register and was issued a certificate of his employment by S/Sri P.P. Bhatnagar, Manager Quality and Bishnoi who was the Chief Chemist. It was also his case that he had continuously worked for 240 days and his services were terminated w..e.f. 29.10.1993 without any rhyme, reason or notice in violation of Section 6-H of the U.P. Industrial Disputes Act, 1947.
CASE OF WORKMAN (MAHESH KUMAR)-ADJUDICATION CASE NO. 106/1995
Mahesh Kumar- respondent no. 1 in Civil Misc. Writ No. 23860 of 2002 also raised industrial dispute which was registered as Adjudication Case No. 106 of 1995. Mahesh Kumar asserted that he was employed at Dalpatpur in 1990 on the post of Spray man and had worked for about 3 1/2 years and had completed more than 240 days of continuous service; he used to sign attendance register in the laboratory and accordingly paid by the employer and was also issued certificate of employment by Sri P.P. Bhatnagar and Sri V.K. Tiwari was General Manager of the society; that he also was removed from service w.e.f. 24.11.1993, without any rhyme or reasons illegally in contravention of provisions of Section 6-H of the U.P. Industrial Disputes Act, 1947
CASE OF THE PETITIONER BEFORE THE LABOUR COURT
The petitioner- Dugdha Utpadak Sahkari Sangh Ltd. contested the aforesaid cases and filed its written statement and raised a preliminary objection that the references were bad in law as workmen were employed through a contractor and there was no relationship of ''master and servant' between the parties. The respondents were never appointed by the petitioner and no appointment letters were issued to them. It was further contended by the petitioner that the reference ought to have been referred by the State Government and not by Deputy Labour Commissioner, Moradabad as per provisions contained in U.P. Industrial Disputes Act, 1947 and rules framed thereunder as the petitioner-society is registered under U.P. Co-operative Societies Act, 1965 and only Registrar of the Co-operative societies has power to decide such disputes. The petitioner also took the stand that the burden of proof that termination was wrongful lays on the workmen as the dispute was raised by them.
According to the petitioner, Lalloo Singh and Mahesh Kumar were contract labourers supplied by the contractor, namely, Dulla. In support of this contention reliance was placed by the petitioner on letter dated 12.2.1994 of P.P. Bhatnagar, Manager of Quality Control in the petitioner-company clearly mentioning that Lalloo Singh and Mahesh Kumar were not in the employment of the petitioner.
Copy of the letter as well as attendance register in Form No. 12 is on record of the respective writ petitions from which it appears that the names of Lalloo Singh and Mahesh Kumar do not figure therein. The petitioner produced Ashok Kumar Bishnoi as E.W. 1; aforesaid contractor Dulla as E.W. 2 and Ramesh Chandra as E.W. 3 in support of its case.
FINDINGS OF THE LABOUR COURT IN ADJUDICATION CASE No. 105/95
In the case of Lalloo Singh, the Labour Court held that he was an employee of the petitioner as the employers did not produce P.P. Bhatnagar and in the absence of his evidence, an adverse inference was drawn against the employers. The Labour Court by the impugned award has held that Dulla did not possess any licence under the Contract Labour Regulation and Abolition Act, 1972 for supplying labourers and the name of Lalloo Singh was on the roll in the attendance register of the petitioner as such he was its employee.
FINDINGS OF THE LABOUR COURT IN ADJUDICATION CASE No. 106/95
In the case of Mahesh Kumar also, the Labour Court believed the version of the workman on the ground of certificates of employment issued by Sri V.K. Tiwari, Manager, who was not produced by the employers and held that the employment of Mahesh Kumar was proved by his signatures in the attendance registers, zerox copies whereof were on record. Accordingly, both the references have been decided by the Labour Court in favour of the workmen directing the petitioner to reinstate them in service with consequential benefits. Hence these petitions.
The counsel for the petitioner has urged in both the cases that the certificates said to have been issued in favour of the workmen were categorically denied in evidence before the Labour Court. In the case of Lalloo Singh, the certificate dated 7.11.2003 was denied to have been issued by Sri Bisonoi , the Incharge of Chemist of petitioner's unit who is alleged to have issued a certificate in his favour. It is submitted that he stated in his evidence that he has no authority to issue such a certificate. It is also submitted that the photostat copies of the certificates which are secondary evidence were not proved from the original i.e. the primary evidence, therefore, the same could not have been relied upon by the Labour Court. Besides this,Dulla the contractor was also examined and he, in his statement, stated that he has a licence for supply of labour but the said licence was not brought by him in the court. He also stated that for the said licence he had deposited Rs. 1800/- before the Licensing authority and licence had been issued tohim, though he had not brought it in the court that day, as such the finding of the Labour Court that dulla-the contractor had no licence was perverse and aginst the material on record
The counsel for the petitioner has relied upon AIR 2001 Supreme Court-3527, Steel Authority of India Ltd. Vs. National Union Water Front Workers. Relevant extract of paragraphs 117 and 122 of the aforesaid judgment is as under:-
"117...... On exhaustive consideration of the provisions of the CLRA Act we have held above that neither they contemplate creation of direct relationship of master and servant between the principal employer and the contract labour nor can such relationship be implied upon the provisions of the Act on issuing notification under Sectiion 10(1) of the CLRA Act, a fortiorari much less can such a relationship be found to exist from the Rules and the Forms made thereunder.
122. The upshot of the above discussion is outlined thus:
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10 prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudication will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned etablishment subject to conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government,prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process,operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
Reliance has also been placed upon 1992 AIR SC-457 Dena Nath and others Vs. National Fertilizers Ltd. and others in which it has been held that:
" The Act merely regulates the employment of contract labour in certain etablishment and provides for its abolition in certain circumstances. The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10. It is not therefore, for the Court to inquire into the question and decide whether the employment of contract labour in any process, operation or any other work in any establishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10. The only consequences provided in the Act where either the principal employer or the Labour contractor violates the provisions of Sections 9 and 12 respectively is the penal provision, contained in Sections 23 and 25. Therefore, in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer."
Lastly reliance has been placed upon paragraphs 96 and 98 of the judgment in 2004 JT(2) SC-51, Workmen of Nilgiri Coop. Mkt. Vs. State of Tamil Nadu and others which read as under:-
" 96. There can not be any doubt whatsoever that where a person is engaged through an intermediary or otherwise for getting a job done, a question may arise as the appointment of an intermediary was merely sham and nominal and rather than camouflage where a definite plea is raised in industrial Tribunal or the Labour Court as the case may be, and in that event, it would be entitled to pierce the veil and arrive at a finding that the justification relating to appointment of a contractor is sham or nominal and in effect and substance there exists a direct relationship of employer and employee between the principal employer and the workman. The decision of this Court in Hussainbhai Calicut Vs. The Allah Factory Thezhilali Union, Kozhikode and otherrs will fall in that category.
98. The decision referred to hereinabove are indicative of the fact that the different tests have been applied in different cases having regard to the nature of the problem arising in the fact situation obtaining therein. Emphasis on application of control test and organization test have been laid keeping in view the question as whether the matter involves a contract service vis-à-vis contract for service; whether the employer had set up a contractor for the purpose of employment workmen by way of a smoke screen with a view to avoid its statutory liability."
The counsel for the respondents submits that respondent no.1 is alleged to have been employed through a Contractor and this fact has been denied by the workmen. It is also submitted that though the employer had a licence for employing the contract labourer but there is no evidence to this effect in the writ petition that the alleged contractor Dulla was a licensee contractor under the Contract Labour Regulation and Abolition Act, 1972. It is further submitted that it is only by way of evidence that it could be proved that the petitioner was an employee of the contractor and there is no evidence to this effect and moreover, it was necessary for the petitioner to have asserted that both, the principal employer and the alleged contractor had licence from the Prescribed Authority under the aforesaid Act,1972.
It is urged that in the case of Steel Authority of India ( Supra) the point decided was that if the contract is abolished the workmen do not automatically become employeees of the principal employer. Similarly in the case of Dena Nath (supra) it has been held that the workmen alleged to have been employed through Contractor do not automatically become the employees of the principal employer, as such in view of the judgment of the Supreme Court in Steel Authority India's case ( supra) the decision of Dena Nath's case has lost relevance here on this ground alone, the award can not be said to be unsustainable. In rebuttal to the arguments of the counsel for the petitioner, the counsel for the respondents submits that respondent no.1 had filed photostat copies and that these were secondary copies of the documents, they could not have been proved without the original but employer filed photocopies and was placing reliance upon it. They could not be disputed. He submits that in view of facts it was for the workmen to establish that he had worked for more than 240 days and the burden of proof was on the workman and the question of burden of proof becomes irrelevant once the finding of fact has been recorded by the Labour Court that the workman had worked for more than 240 days, as such a finding of fact cannot be interfered by this Court in writ jurisdiction. It is lastly submitted that it was upon the petitioner to have produced best evidence and it could have produced its own Attendance Registers to get it established that respondent no.1 had not worked for more than 240 days.
After giving thoughtful considerations to the contentions of the petitioner as well as respondents and on perusal of record, I find that admitted facts are that the workmen had submitted photostat copies of some attendance register showing their attendance therein. Photocopies are not proof and they were not proved in accordance with law and as such could not have been relied upon by the Labour Court. The copy of the attendance register filed by the employers shows that it does not contain the names of the workmen. Both the parties admit that Dulla was a contractor for supply of labourers to Dugdha Utpadak Sahkari Sangh Ltd.- the petitioner. It is also admitted to the parties that the workmen were working as casual labour. Admittedly, the workmen were working in the petitioner establishment. As such, the attendance registers are not very relevant. The relevant question to be decided by the Labour Court on the basis of evidence before it was, whose employees they were, i.e., they were supplied by Dully- the contractor or were directly appointed by the petitioner-establishment?
Burden of proof about relationship of ''master and servant' lay on the workman. It is not proved by drawing adverse inference as held by apex court in Workman of Nilgiri Co-operative Marketing society Vs. State of Tamil Nadu 2004(3)-514. In this regard, reference may be had to a decision of this court in Meritech India Ltd. Vs. State of U.P. and others, 1996 FLR wherein after referring the case of V.K.Raj Industries V. Labour Court (I) and others- 1981(43) F.L.r-194 and Airtech Pct. Ltd. v. Mrs.s.v. suvarna and another-1994(68) F.L.R-1028, it was held as under:-
"Section 5-C (1) of the Act provides that subject to any rules that may be made in this behalf, a Labour Court shall follow such procedure as it may think fit. It is, therefore, clear that the discretion of the Court is not absolute. It is circumscribed by Rules, if any. We have, therefore, to look to the U.P.Industrial Disputes Rules of 1957. Rule 12 provide that where the State Government refers an industrial dispute for adjudication to a Labour Court within two weeks of the date of receipt of the order of reference, the workmen and the employers involved in the dispute shall file before the Labour Court a statement of the demands relating to the issues as are included in the order of reference. Sub-rule (8) provides that the written statement filed by the Union of the workman shall state the grounds upon which the claim of the concerned workmen is based and the written statement shall be accompanied by an affidavit in which the statement contained in the written statement should be sworn to. Sub-rule (9) states that if the statement accompanied by the affidavit of the Union or the workman is not repudiated by the employer, the Labour Court shall presume the contents of the affidavit to be true and make an award accepting the case stated in the written statement.
From a combined reading of Section 5-C(1) and the aforementioned sub-rules of Rule 12 it is apparent that it is imperative upon a workman to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence. If the employer does not caré to controvert the averments made in the affidavit nothing further need be proved or done by the workman. The Labour Court is duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit as correct. These provisions indicate that the burden of proving the case referred to the Labour Court for adjudication by the State Government lies on the workman. The distinction between a burden to proof and the onus of proof is well known . It is trite that the burden of proof never shits. It is the onus which keeps on shifting from stage to stage. The Labour Court patently erred in holding that keeping in view the terms of the reference made by the State Government the burden of proof lay upon the employer.
The matter can be looked at from another angle, which party will fall if the evidence is not led before the labour court in proceedings in a reference made to it for adjudication by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workman and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the court against the workman. In such a situation it is not necessary for the employers to lead any evidence at all. This mater was dealt with by the Apex Court in Shankar Chaudhary Vs. Britannnia Biscuits Co. Ltd..-1979 (3) F.L.R.-70 In paragraph 30 the Court held that the Labour Court or the Industrial Tribunal have all the trappings of a court. In parahgraph 31 it held that any party appearing before a Labour Court or Industrial Tribunal must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence . The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. It must seek an opportunity to lead evidence."
It is admitted case of the parties that the principal employer had a licence under the Contract Labour Regulations and Abolition Act. It is also submitted that since the respondents have asserted that there was relationship of master and servant between the petitioner and respondent no.1, therefore, the burden of proof lay upon respondent no.1 to have proved by cogent evidence that he was engaged by the petitioner and not that of the contractor in the absence of discharge of such burden of proof the Labour Court has committed an illegality in holding that the workmen were the employees of the petitioner. Consequently, the Labour Court could not have directed reinstatement of the respondents by treating them in continuous service, as such the award of the Labour Court deserves to be set aside.
The Labour Court in its findings has held that Sri P.P. Bhatnagar was an employee of the petitioner and he was not produced in evidence to admit or deny the fact that he had issued certificate to the workman. The Labour Court appears to have been swayed away by the fact that though Dulla had been produced by the employers in evidence but had not brought his licence under the Contract Labour Regulations and Abolition Act with him when he had appeared in evidence before the Labour Court. In fact, the Labour Court, though noted the fact that Dulla had in his evidence stated that he had the licence for supply of labourers but did not have the same with him at that time. The Labour Court could not in these circumstances have inferred that Dulla had no licence. It is a quasi judicial authority. It is not a court but by virtue of its office it has all the trappings of a court. It has been vested with powers of entry and inspection under Section 5-C read with Rule 17 and 21, powers of discovery and inspection are vested in Labour court as are vested in a Civil Court for trying a suit and power under Rule 21 to appoint commissions for local investigations under rules 35 and 36 of the U.P. Industrial Disputes Rules, 1957.
Section 5-C of the U.P.Industrial Disputes Act, 1947 is as under :-
"5-C.Procedure and Powers of Boards, Labour Courts and Tribunals- (1) subject to any rules that may be made in this behalf, an arbitrator, a labour court or a tribunal shall follow such procedure as the arbitrator, the labour court or the tribunal concerned may think fit.
(2) A Presiding Officer of a Labour court or a tribunal may for the purpose of enquiry into any existing or apprehended industrial disputes, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.
(3) Every Board, Labour Court and Tribunal shall have the same powers as are vested in a Civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the followinig matters, namely, -
(a) enforing the attendance of any person and examining him on oath or affirmation or otherwise;
(b) requiring the discovery and production of documents and material object;
(c) issuing commissions for the examination of witnesses;
(d) inspection of any property or thing including machinary concerning any such dispute ; and
(e) in respect of such other matters as may be prescribed;
and every inquiry or investigation by a Labour Court or tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code."
Rule 21of the U.P. Industrial Disputes Rules, 1957 is as under:-
Rule 21 : "Power of Labour courts, Tribunal and Arbitrators - In addition to the powers conferred by the Act, Labour Courts, tribunals and Arbitrators shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely,-
(a) Discovery and inspection;
(b) Granting of adjournment; and
(c) Reception of evidence taken on affidavit;
and the Labour Court or Tribunal or Arbitrator may summon and examine any person whose evidence appears to it/him to be material."
These powers have been given to the Labour Court for doing complete and substantial justice to the parties: the Industrial disputes Act, 1947 is a special Act for resolving industrial disputes. It is a complete code itself which provides settlement of industrial disputes by various forums, such as, conciliation, arbitration, reference etc. Section 6-I of the U.P. Industrial Disputes Act read with Rule 40 of the aforesaid Rules, 1957 places a bar on the parties from being represented by a legal practitioner in any proceeding before it. This is for doing away technalities of law and give substantial justice to the parties speedy. The Labour court authority has to shun away the technalities and not only take into consideration the evidence before it, but it is also morally and legally bound under the Statute to call for any evidence if in his opinion the evidence is necessary and he gives award on the basis of such evidence having been given or not given by any of the parties.
The Labour Court could have directed Dulla to produce the licence on the next day or on any day for doing substantial justice between the parties but it did not do so and branded Dulla as Farzi person and gave the award by failing to exercise its power under the Act and the Rules framed thereunder.
Though the Labour Court has recorded a finding of fact that workers had continuously worked for abour 3 1/2 to 4 years but there does not appear to be any material evidence in support of this finding of the Labour Court. As stated earlier, there is variation in the photocopies of the attendance registers filed by the workmen and employers. The plea of the workmen is that they had worked continuously for more than 240 days with the petitioner. It was for them to plead and prove by cogent evidence that either by novation of the contract/appointment letter or by any other material evidence that they were workmen of the petitioner and employed by it and there existed a relationship of ''master and servant' between them and the petitioner. The witness Dulla had admitted that these workmen were his employees and were supplied by him as contract labourers.
The Labour Court also overlooked that there was no post of Spray man and as such Mahesh Kumar could not have been appointed or reinstated on a post which did not exist. Dulla had specifically stated in his cross examination that he can submit the licence of supply of contract labourers and had deposited a sum of Rs. 1800/- for licence as required for supply of 20 employees. The finding that workmen had continuously worked for more than 240 days with the employers appears to have been recorded without any documentary evidence. In the admitted facts and circumstances of the case that the workmen were casual workers engaged intermittently from time to time on the basis of need, the relief of reinstatement with continuity of service and full back wages could not have been granted by the labour court. It has committed an illegality by giving them continuity of service to casual/daily workers of a contractor in regular establishment of the principal employer. Sight may not be lost of the fact that none of the workmen had submitted their appointment letters before the Labour Court. It was upon the respondents to prove those certificates by producing Sri P.P. Bhatnagar who issued certificates which had been filed by them before the Labour Court and not by the petitioner. The burden of proof could not be shifted in this regard upon the employers and adverse inference could not be drawn against them. The Labour Court has committed an illegality by shifting the burden of proof on the employers in this regard and drawing adverse inference.
For the reasons stated above, the writ petition is allowed. The impugned award dated 29.1.2002 passed by the Labour Court, U.P., Rampur is quashed. The matter is remanded back to the Labour Court, U.P. Rampur for giving a fresh award in accordance with law and in the light of the observations made in the body of this judgement preferably within a period of 4 months from the date of production of a certified copy of this judgement and order. The parties shall bear their own costs.
Dated December , 2004
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