JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the Labour Court award dated 25,5.1998 passed in adjudication case No. 70 of 1997 (Annexure 12 to the writ petition).
2. The facts arising out of the writ petition are that the petitioner who is a Board constituted under Section 5 of the Electricity Supply Act, 1948. The board is to prepare and carry out schemes for transmission, distribution and generally for promoting the use of electricity within the state for improving the efficiency of the board has to engage contractor for running brandma machine, the contractor engage trade operators and there is no relationship of employer and employee between the said labourers engaged through contractor of U.P.S.E.B. One Vivek and Associates engaged for cash collection. Thus Vivek and Associates agreed to look after the control of the machine including supply of manpower. The respondent No. 2 was also engaged through contractor M/s Vivek and Associates. The respondent No. 2 has raised the dispute before the Labour Court that he is an employee of petitioner was engaged for collecting cash from the customers and has worked from 13.6.1995 to 31.8.1996 and after that the services have been terminated orally by the Board. It has been submitted on behalf of the petitioner that the written statement was filed on behalf of the petitioner and they have denied that there is any of employee and the employer between the petitioner and respondent No,. 2 The respondent No. 2 was never engaged by the board as a cashier. The respondent No. 2 may have been engaged through contractor therefore now in view of the well settled principle the contract labourers have got no right to claim regularization. It has further been submitted that the respondent No. 2 filed an application praying for summoning the records but in the application he could not proved anything to show that he is having any relationship with the Board as an employee. But the labour Court without considering all these aspects of the matter given an award in favour of the respondent No. 2 on 25.5,1998. Against the aforesaid order the petitioner has approached this Court.
3. The writ petition was entertained and a conditional order was passed by this Court on 18th January, 1999.
4. It has been contended on behalf of the petitioner that as the factum of relationship between the petitioner and the respondent No. 2 has been denied and no documentary evidence has been filed by the respondent No. 2 showing therein that he was engaged or he was under the employment of the petitioner from 13,6.1995 to 31.8,1996. Even if he worked for the board, he was working as an employee of the Contractor. More so Sri Harjeet Singh, Assistant Engineer was not the competent authority to issue a certificate in favour of the respondent No. 2 because the executive engineer of the Board is the only authority to issue a certificate.
5. Sri Ranjit Saxena, who appeared for the petitioner has submitted that a contract labour engaged through contractor has got no right for reinstatement, as he is not engaged by the petitioner. He was engaged through contractor. Reliance has been placed upon Steel Authority of India Ltd. and Ors. v. National Union Water Front Workers and Ors. and has submitted that in view of the Constitutional Bench Judgment a contract Labour unless and until it is established that he is an employee of the Board, the Labour Court cannot grant any relief. Another judgment relied upon in All India Railway Parcel Goods Porters' Union v. Union of India and Ors. and has placed reliance upon Paras 26 and 27 of the said judgment and has submitted that the Apex Court has held that as per established principle of law the petitioner "in order to succeed will have to substantiate their claim. Non-production of evidence in opposition will not support the claim of the petitioners even by legal fiction. The Assistant Labour Commissioner has failed to appreciate this proposition of law while recommending the claim of the petitioners. Burden of proving the claim of continuous working rests of the claimants for which they are required to furnish concrete proof and reliable document." The further reliance has been placed by the counsel for the petitioner in (2004) Labour and Industrial Cases, 50 Ram Singh and Ors. v. Union Territory, Chandigarh and Ors. and has submitted that normally, the relationship of employer and employee does not exist between an employer and contractor and servant of an independent contractor. The actual relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. Further reliance has been placed in 2004 (17) AIC 581 (S.C.) Workmen of Nilgiri Co-operative Marketing Society Ltd. v. State of Tamilnadu and Ors. 2004 (18) AIC 680 (S.C.) Sarva Shramik Sangh v. Indian Smelting and Refining Company Ltd. 2004 (18) AIC, 692 (S.C.) Mool Shankar Singh v. Regional Manager, P.N.B. and Anr. 2005 (26) AIC 534 (S.C.) Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. 2005 (26) AIC 546 (S.C.) M.P. High Court Bar Association v. Union of India and Ors. , Air India Statutory Corporation v. United Labour Union Labour Union and Ors. 2002 (95) FLR 949 Essen Deinki v. Rajiv Kumar 2002 (95) FLR 954 State of Orissa and Ors. v. Balaram Sahu and Ors. 2001 (91) FLR 1138 U.P. State Electricity Board, Lucknow and Anr. v. Presiding Officer, Industrial Tribunal IV, U.P., Agra and Anr. (2002) 2 Supreme Court Cases 25, Range Forest Officer v. State of Karnataka and Anr.
6. Sri Ranjit Saxena on the basis of the aforesaid judgments has submitted that as the respondent No. 2 was a contract labour engaged through contractor, therefore, has got no right and the Labour Court has clearly erred in granting the relief of reinstatement to the respondent No. 2.
7. On the other hand Sri Satish Chatrurvedi, who appeared for the respondent No. 2 has submitted that as the documents relied upon by the petitioner was not filed before the Labour Court, therefore, that cannot be taken into consideration by this Court and the same has been filed before this Court for the first time. It has been submitted that Annexure 3 to the writ petition has never been filed before the Industrial Tribunal and as such, the same cannot be considered. In paragraph 4 of the said counter affidavit it has been stated that Annexure 3 is a manufactured and fabricated document which has been filed before this Court for wholly ulterior motive only to mislead the Hon'ble Court.
8. In a short counter affidavit in para 4 it has been stated that Annexure 2 to the writ petition is not a part of the record of the Labour Court. The same was never filed. The same appears to be manipulated before this Court. It has further been contended on behalf of the respondent that contention of the petitioner to this effect that the respondent No. 2 was engaged through contractor and an agreement between the petitioner and Vivek Associates was arrived for doing certain work and certain persons were engaged through contractor for operating bradma machine and the contractor was being paid Rs. 175/- per machine according to the agreement. An attention to Annexure 2 to the writ petition has been drawn by the counsel for the respondent. Page 3 of the said agreement clearly states "the cash handing is to be done by K.E.S.A cashier or cash handing is to be done by K.E.S.A cashier or a representative of K.E.S.A duly authorized by Deputy CAO/ Head Cashier.
9. In view of the aforesaid fact, the respondents submits that according to the case of the petitioner itself the petitioner was not engaged as contract labour and was given an assignment as cashier. It has been submitted that Para 6 of the finding recorded by the Labour Court that the workmen has filed various documents and an application was made by the workman to summon certain documents. The workman has obtained a training for a period of six months and after that he was given an appointment. The counsel for the respondents has drawn attention of the Court regarding the statement of one R.K. Dubey, who was junior engineer and drafter has clearly stated that during 1995-96 the tender was accepted in favour of Vivek and Associates and he was paying Rs.175/- per day for machine but no person like Shamim Mirza (Workman) was working. A statement to this effect has also come on behalf of Sri R.K. Dubey that except the respondent No. 2 he do not know any other cashier. The further attention has been drawn by the counsel for the respondents regarding the certificate, which has been issued by the Assistant Engineer Sri Harjit Singh that the respondent No. 2 has worked from 13.6.1995 to 1.9.1996 on the post of cashier. The reliance has been placed by the judgment of the Apex Court reported in AIR 1963 (7) Page 253 Basti Sugar Mills v. Ram Ujagar and Ors. and judgment relied upon by the counsel for the respondents in 1999 (81) FLR 990 Bharat Heavy Electricals Ltd. v. State of U.P. and Ors. and has placed reliance upon Para 11 of the said judgment and has submitted that definition of employer given in Section 2(i)(iv) of the Act is an inclusive definition. If the respondent workman as a matter of fact were employed with the appellant to work in the premises and which is found established the employer couldn't escape his liability. It is clear that the workman is an employee of a principle employer or not depends on the facts and circumstances of the present case. The further reliance has been placed upon in 2005 (105) FLR 383 Bank of Baroda v. Ghemarbhai Harjibhai Rabari. The reliance has been placed upon paras 8 and 10 of the said judgment. The same is being reproduced below.
8. While there is no doubt in law 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 for a 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.
10. For the reasons stated above, we are of the considered opinion that the respondent-workman in this case has established his claim as held by the Tribunal, and we find no reason whatsoever to interfere with the impugned order. The appeal fails and the same is dismissed with costs.
10. In view of the aforesaid judgments, the counsel for the respondents submits that the Industrial Tribunal being a last court of fact and if a judgment has been passed after appreciation of evidence and on the basis of document before Labour Court this Court generally does not interfere in such cases, as such, the writ petition is liable to be dismissed.
11. After hearing counsel for the parties and after perusal of the record now it is not disputed that the workman has to prove his case beyond doubt that he has completed 240 days in a one preceding calendar year and there was a relationship of employee and employer. The burden cannot be shifted upon the employer. The workman was to substantiate his claim before the Labour Court but in the present case from the perusal of the record, which has been filed with the writ petition, though in the counter affidavit it has clearly been stated that two documents were never produced or file before the Labour Court, it has been filed first time before this Court. There is no denial on behalf of the petitioner. As assailed by counsel for the petitioner that the respondent No. 2 was a contract labour and there was no relationship of employee and employer and as a copy of the agreement has also been annexed. The court has perused the agreement. On page 3 of the said agreement it has clearly been mentioned that cash handling work is to be done by the Kanpur Electricity Supply, From the award given by the labour Court it is also clear that the document which has been filed by the respondent workman has not been rebutted by the petitioner. The junior noter and drafter who was the person to make the payment of brandma machine has clearly stated in his statement that he does not know any other casher except the respondent No. 2. Sri Harjit Singh, Assistant Engineer has also issued a certificate in favour of the respondent No. 2 that the respondent No. 2 was working at Kalyanpur Kesha sub-station on the post of cashier from 13,6.1995 to 31.8.1996. The document W-1 to W-15 which were filed by the respondent No. 2 support the contention of the workman, A finding of fact has also been recorded by the Labour Court that as various employees of the petitioner has clearly stated that the respondent No. 2 who has worked on the post of cashier. The DW-1 and DW-2 has clearly stated in their statements that the respondent No. 2 was posted to function as cashier and they do not recognized any other cashier.
12. In such a way after recording the aforesaid findings the Labour Court has come to the conclusion that as the proper procedure provided under the law has not been followed by the employer, therefore, the oral termination of the respondent No. 2 is bad in law and as such, the respondent No. 2 workman is entitled for reinstatement and back wages.
13. In a recent judgment of the Apex Court reported in 2005 Supreme Court Cases (Labour and Service) 372, Management of Madurantakam Corporation Sugar Mills Ltd. v. S. Viswanathan has considered the interference under Article 226 of the Constitution of India by this Court regarding the finding recorded by the Labour court. In my opinion, the respondent No. 2 workman has proved his case and as such a finding of fact has been recorded by the Labour Court that the workman is entitled for relied and there is a relationship of employee and employer. The Apex Court has observed in Paras 12, 13 and 16. The same is being reproduced below: -
12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court.
13. The Division Bench too in appeal, in our opinion, has committed the same error. Maybe, there was some justification, since if it had to allow the appeal, then it had to consider the points on facts decided by the learned Single Judge. In that process it also took up for consideration every bit of evidence that was considered by the Labour Court as well as by the learned Single Judge and disagreed with the finding of the learned Single Judge.
16. We note that the Labour Court has taken into consideration the fact that the complainant had stated that on the day when he went to meet the workman he was greeted with an abuse, but this piece of evidence was not accepted by the Labour Court rightly because it is rather difficult to accept that any normal person who meets another person for the first time in his life would straightaway abuse him without any rhyme or reason. In this background, we cannot conclude that the finding of the Labour Court on this question is perverse. The other argument of the learned Counsel for the appellant is that there was evidence to show that the demand of Rs. 10 was made as illegal gratification in the guise of donation and that case ought to have been accepted. We must state that even this question was considered by the Labour Court and was rejected on the ground that the mere statement of the complainant in this regard without there being any corroborative material was insufficient to hold the workman guilty. Even this finding in our opinion cannot be held to be perverse taking into consideration the overall facts of the case. In regard to the third charge of not allowing the complainant to enter the godown also, it cannot be said that the finding of the Labour Court is perverse. In such a background it is not possible for this Court to accept the contention of the management that the Labour Court's findings are unsustainable in law. It may be possible for another person to take a different view, but certainly it is not possible to give a finding that the conclusion of the Labour Court was either perverse or not based on evidence.
14. In view of the aforesaid facts and circumstances of the present case, in my opinion, it is not a case in which this Court exercise the jurisdiction under Article 226 of the Constitution of India, because in my opinion, the Labour Court has considered each and every aspect of the matter and after considering the evidence on record and the documents has come to the conclusion that the respondent No. 2 had worked as a cashier from 13.6.1995 to 31.8.1996 on the post of cashier. A finding recorded by the Labour Court cannot be said to be either perverse or based or not based on evidence, which is not legally acceptable.
15. In view of the aforesaid fact, I find no merit in the present writ petition. The writ petition is devoid of merits and is hereby dismissed. There shall be no order as to cost.