JUDGMENT R.H. Zaidi, J.
1. By means of instant petition, under Article 226 of the Constitution of India, the petitioner mainly prays for issuance of writ, order or direction in the nature of certiorari quashing the award dated 23.8.1995 given by the Presiding Officer, Labour Court, Lucknow, in Adjudication Case No. 109 of 1989, against the petitioner, in exercise of powers under the U. P. Industrial Disputes Act (hereinafter for short 'the Act'). Prayer for a writ of mandamus directing the respondents not to enforce the aforesaid award and not to prosecute the petitioner for its non-compliance have also been made.
2. The relevant facts of the case given rise to the present petition are that respondent No. 3, 'Kapra Karmchari Sangh'. Ganga Prasad Verma Smarak Bhawan. Aminabad, Lucknow, complained to the Conciliation Officer, on behalf of Smt. Pushpa Singh, Smt. Kamlesh Kumari, Smt. Prema Nigam and Smt. Suman who were engaged in "chikan sewing etc. In petitioner firm that their services were illegally terminated by the petitioner. The prayer for their reinstatement with back wages was also made. The complaint made by respondent No. 3 was registered as Conciliation Case No. 270 of 1988 by the Conciliation Officer, Lucknow. On receipt of the notice from Conciliation Officer, petitioner filed a written statement in the said case, pleading that the aforesaid ladles were never employed by it. They used to collect work and execute the same at their own premises on contract basis. They were never employed by the petitioner on regular basis, therefore, there was no question of termination of their services, the conciliation proceedings, therefore, are liable to be dropped. Since the dispute remained unresolved, the State Government vide Notification dated 31.3.1989 made a reference under Section 4K of the Act for adjudication to the respondent No. 2 reference made by the State Government was registered as Adjudication Case No. 109 of 1989. The Industrial Dispute which was referred to respondent No. 2 reads as under:
"Kya Sewa Yojak Dwara Apni Mahila Shramik Smt. Pushpa Singh, Kamlesh Kumari, Prema Nigam Evam Suman ko Dinank 21.12.87 Se Sewa Se Prithak/Vanchit Kiya Jana Uchit Tatha Athwa Vaidhanik Hai? Yadi Nahin to Sambandhit Mahila Shramik Kya Labh/Anutosh (Relief) Pane Ka Adhikarini Hain Tatha Anya Kis Vwran Sahit?"
3. In the said case, respondent No. 3 filed its written statement claiming that Smt. Pushpa Singh and others were the members of the Sangh. They had been working in the petitioner's firm regularly. The petitioner firm was being run from M. L. K. House No. 439, New Malihabad Road, Thakurganj, Lucknow and M/s. Manohar Lal Kapoor and Sons, M/s. M. L. K. Handicrafts and M/s. International Exports were also being run from the same premises. It was pleaded that the Management and ownership of all the above noted firms were in the hands of same set of people. The names of the aforesaid ladies were not recorded in the attendance and the pay registers of the petitioner firm, complaints regarding which were made to the authorities concerned, inspite of that the names of the said persona were not recorded in the attendance register or in the pay register. It was claimed the services of the aforesaid 4 persons, were terminated w.e.f. 21.12.1987 illegally without following the procedure prescribed under the Act, prayer for their reinstatement with full back wages was also made.
4. The petitioner also filed its written statement pleading that the alleged dispute was not an industrial dispute within the meaning of the term as defined under Section 2 (i) of the Act. The aforesaid persons were never employed by the petitioner nor the petitioner used to exercise any control upon them. It was pleaded that the said persons were not employees of the petitioner and there exists no relations of master and servant between the parties. It was also pleaded that the aforesaid 4 firms were independent firms. The allegations made to the contrary were incorrect.
5. Parties produced oral and documentary evidence in support of their cases. Respondent No. 3 also made an application to summon the Labour Officer with the record of the case maintained in the Labour Office. One Sri S. P. Singh, Labour Enforcement Officer is stated to have appeared before respondent No. 2 whose statement was recorded on oath. It was stated by Sri S. P. Singh that no record was available In the office of the Labour Enforcement Officer.
6. Respondent No. 2 upheld the claim of respondent No. 3 and gave his award holding that the termination of services of Smt. Pushpa Singh and others was illegal. They were, therefore, directed to be reinstated with 2/3rd back wages by judgment and order dated 23.8.1995.
7. The learned counsel for the petitioner vehemently urged that there existed no relationship of master and servant between the parties, therefore, there was no question of termination of services of Smt. Pushpa Singh and others. Respondent No. 3 had no right to espouse the cause of the said persons.
There was no evidence on record to show that the said persons were ever employed by the petitioner findings to the contrary recorded by respondent No. 2 were based on no evidence. The impugned order, therefore, was liable to be quashed.
8. On the other hand, learned counsel appearing for the respondent No. 3 supported the validity of the order passed by respondent No. 3. It was urged that from the evidence on the record it was proved that all the four ladies used to work in their employer's establishment for more than 240 days. Their services were illegally terminated by the petitioner on 21.12.1997 without following the procedure prescribed under the law and without paying retrenchment compensation, in violation of Section 6N of the Act. It was also urged that the aforesaid 4 ladles were members of respondent No. 3. Respondent No, 3 was, therefore, quite competent to espouse their cause.
9. I have considered the rival submissions made by the learned counsel for the parties and also perused the record.
10. It is evident from the material on record that Smt. Pushpa Singh and others were the members of respondent No. 3. They used to pay membership fee to the said respondent, therefore, respondent No. 2 did not commit any error of law in holding that respondent.
11. The basic questions involved in the present case are as to whether Smt. Pushpa Singh and three others were the workmen of the petitioner and as to whether there existed any Industrial Dispute between the parties.
12. The terms 'Industrial Dispute' and the 'workmen' have been defined under clauses (1) and (2z) of Section 2 of the Act as under :
"(1) 'Industrial Dispute' means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person ; but does not include an industrial dispute concerning:
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(z) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
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13. From the aforesaid definitions of the terms 'Industrial Dispute' and 'Workman', it is apparent that for existence of an industrial dispute, there must exist relationship of master and servant (employer and workmen) between the parties. Respondent No. 3 claimed Smt. Pushpa Singh and others were the workmen in the petitioner's firm. It was thus obligatory upon it to prove that there existed relationship of master and servant between the parties. Unless the said relationship was proved, there could be no industrial dispute between the parties.
14. In Management of M/s. Puri Urban Co-operative Bank v. Madhusudan Sahu and another, AIR 1992 SC 1452, the Apex Court was pleased to rule as under:
Therefore, we are of the view that though Sahu claims to be workman as commonly understood, he was not 'employed' as such, so as to establish a master and servant relationship, which could warrant a reunion in the event of disruption, by the intervention of the Labour Court. The allegation of the Bank before the Labour Court, as well as here, that Sahu is a reputed goldsmith and had remained gainfully employed so as to disentitle him any back wages, which appealed to the Labour Court, has remained uncontroverted before us. It also remains uncontroverted before us that the Bank has, on its approved list, other such like appraisers and it is not obligatory for the Bank to allot work to Sahu or any other, at all. Additionally, in no event can he ask for work, or periodic remuneration or idling wages. These particulars, not by themselves, but in the totality of circumstances indicate lack of master and servant relationship."
15. In Chintamani Rao and another v. State of Madhya Pradesh, AJR 1958 SC 388, the Supreme Court was pleased to rule that the concept of employment involves three ingredients :
(1) employer, (2) employee, and (3) the contract of employment.
16. It has been held that the employer is one who employees, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee where under the employee agrees to serve the employer subject to his control and supervision.
17. Similar view was taken by the Supreme Court in D. C. Works Ltd. v. State of Saurashtra, MR 1957 SC 264. It was ruled that the essential condition of a person being a workman within the terms of the definition in Section 2 (s) is that he should be employed to do the work in the industry, that there should be, in other words, an employment of his by the employer that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed, there can be no question of his being a workman within the definition of the term as contained in the Act. According to the Supreme Court, the prima facie test for determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.
18. Now we will have to see as to whether in the present case respondent No. 3 has proved that Smt. Pushpa Singh and others were the workmen within the definition of the term as contained in the Act and as to whether respondent No. 2 has recorded any clear and categorical findings on the relationship of master and servant between the parties. Admittedly, the names of Smt. Pushpa Singh and others are not recorded in the attendance register nor in the pay register. The evidence given by the respondent No. 3 was only to the effect that they used to do work of the petitioner. The petitioner pleaded and proved that Smt. Pushpa Singh and others used to collect work and to execute the same at their own premises on contract basis and that it exercised no control on their working in any manner. Respondent No. 2 without recording any findings on the question of relationship of master and servant between the parties and without considering the question as to whether the petitioner used to supervise and control the work by the said ladies simply held from the evidence oral as well as documentary, it is proved that all 4 ladies used to do work for the employer's establishment for more than 240 days and that their services were illegally terminated by the petitioner on 21.12.1997, without giving any notice and without paying retrenchment compensation as provided under Section 6N of the Act. Respondent No. 2 did not record any findings on the question of relationship of master and servant between the parties as required under the law and without determining the point of commencement of their employment reached to the conclusion that they worked for more than 240 days.
19. The aforesaid findings recorded by respondent No. 2 are not based on any relevant evidence on record. They are apparently erroneous and illegal. Since it was not proved that there existed relationship of master and servant between the parties, there was no question of existence of any Industrial dispute between them, the view taken to the contrary by respondent No. 2 and the order passed by him are manifestly Incorrect and Illegal.
20. In view of the aforesaid discussion this writ petition deserves to be allowed.
21. This writ petition succeeds and is allowed. The judgment and order dated 23.8.1995 (contained in Annexure 1) is quashed. The Interim order, if any granted by this Court is discharged.
22.No order as to costs.