JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner has challenged the validity and correctness of the impugned award dated 19th December, 2003 passed by the Industrial Tribunal (I), U.P. Allahabad in Adjudication Case No. 88 of 1999 in the matter of Industrial dispute was between the workman and the concerns known as (i) M/s Kesarwani Sheetalaya Soraon. Allahabad and (ii) M/s Sangam Cold Storage, Soraon, Allahabad.
3. The respondent No. 3 the workman concerned raised an industrial dispute against the aforesaid two Cold storages claiming that he was appointed orally on 10.1.1995 on the post of Store Keeper in M/s Sangam Cold Storage, Soraon, Allahabad. He claimed that his appointment was oral and that both the Cold storages were run by the member of the same family. He also claimed that his services were orally terminated on 27.6.1997 by M/s Sangam Cold Storage i.e. employer No. 2.
4. The conciliation proceedings having failed the matter was referred by the Deputy Labour Commissioner, U.P. Allahabad in exercise of delegated powers under Section 4-Ka of the U.P. Industrial Disputes Act, 1947. for adjudication to Industrial Tribunal, Allahabad, where it was registered as Adjudication Case No. 88 of 1999.
5. The parties filed their written statements and rejoinder statements respectively before the Tribunal in support of case. The parties also filed documentary evidence and adduced oral evidence. The workman examined himself before the Tribunal as W.W. 1. On behalf of the petitioner Suresh Chandra Kesarwani, partner gave his statement as E.W. 1. After hearing the panics, the Tribunal passed the impugned order dated 19.12.2003 said to have been enforced by publication on the notice board on 22.4.2004.
6. By the impugned award the Tribunal held that the workman was wrongfully terminated by M/s Sangam Cold Storage and directed his reinstatement with all consequentil benefit with M/s Kesarwani Sheetalaya, the petitioner.
7. The impugned award has been assailed in the writ petition on the grounds that the findings recorded by the Tribunal against the petitioner are perverse and against the material on record. It is submitted that from the written statement filed by the workman as well as from his evidence it is admitted fact that respondent No. 3 was appointed by M/s Sangam Cold Storage and that his services were terminated by the said establishment, hence the Tribunal has committed in illegality in granting relief of reinstatement to the workman in the petitioner's establishment i.e. M/s Kesarwani Sheetalaya. It is submitted that the award is wholly arbitrary and without application of mind as the two establishments were independent and owned by different members of the same family.
8. It is further submitted that admittedly M/s Sangam Cold Storage had been closed down w.e.f. 18.6.1999 and no relief of reinstatement could have been granted to the workman concerned and at best he would have been entitled to closure compensation under Section 25-FFF of the U.P. Industrial Disputes Act, 1947 up to the date of the closure of M/s Sangam Cold Storage.
9. It is next submitted that the petitioner M/s Kesarwani Sheetalaya and M/s Sangam Cold Storage were two separate firms and distinct legal entities registered under the Factories Act as well as by Horticulture Department. U.P. Lucknow. The petitioner M/s Kesarwani Sheetalaya was neither responsible nor liable to take over the liability of M/s Sangam Cold Storage as the workman has failed to prove his case by filing documentary and oral evidence that he was ever appointed by petitioner Ms Kesarwani Sheetalya. Thus the findings of the Industrial Tribunal are illegal and deserve to be quashed.
10. The impugned award is also assailed on the ground that the findings of the Tribunal that respondent No. 3 workman had established that he had worked from 10.1.95 to 27.6.1997 with M/s Sangam Cold Storage are perverse and is not based on any material evidence particularly in view of the admitted position of the fact by the workman that his name was not in the Attendance Register maintained by M/s Sangam Cold Storage.
11. It is vehemently urged by Sri Vijai Ratan Agarwal, the counsel for the petitioner that the Industrial Tribunal has committed a gross error in law in holding that since Suresh Chandra Kesarwani was also a partner of M/s Sangam Cold Storage as well as in M/s Kesarwani Sheetalaya it is established that there had been relation of employer and employee between the petitioner and the workman. He submits that the Tribunal has assumed that the workman must have been made to work for the Kesarwani Sheetalaya. The Tribunal misdirected itself in granting relief of reinstatement with full back-wages in the circumstances against the petitioner M/s Kesarwani Sheetalaya which had never engaged respondent No. 3, workman and these was no relationship of employer and employee.
12. The counsel for the respondents submits that it is admitted that Sri Suresh Chandra Kesarwani is the partner of both the firms, hence he is the employer of the workman even though he was appointed in M/s Sangam Cold Storage. He further submits that since M/s Sangam Cold Storage had been closed down w.e.f. 18.6.1999 the relief of reinstatement could not have been granted against a dead firm, as such the Tribunal has rightly awarded reinstatement to, him in M/s Kesarwani Sheetalaya, the petitioner in this case.
13. The counsel for the respondents further urged that both the establishments are run by the family members of the same family and the Tribunal has not committed any error apparent on the lace of the record in granting reinstatement to the workman in the petitioner's establishment i.e. Ms Kesarwani Sheetalya even though both the firms are separate and distinct because after closure of M/s Sangam Cold Storage its assets were taken by the petitioner M/s Kesarwani Sheetalya and it had merged into it the after closure. Reliance has been placed by him in this regard upon the written statements as well ifs on the evidence of the employer's witness who in his cross-examination had admitted that after the closure of M/s Sangam Cold Storage the legal dues of all its employees had been paid. Thereafter the assets of the closed/dead firm were merged.
14. It appears from the record that it is not in dispute that (i) workman was employed by M/s Sangam Cold Storage; (ii) he was never employed by M/s Kesarwani Sheetalya; (iii) both the firms were having separate and distinct legal entities and the licence granted by the Horticulture department, U.P. Lucknow to each of them was also separate and electricity connection and premises were also separate; (iv) the partners were different in each of the two firms (v) the services of the workman were terminated by M/s Sangam Cold Storage and all their legal dues had been paid on closure (vi) Electricity connection of M/s Sangam Cold Storage was got disconnected and (vii) the workman has himself admitted in his evidence that he has obtained Toll Patta in respect of M/s Kesarwani Sheetalaya from the farmers who had loaded the potato in M/s Kesarwani Sheetalaya.
15. In my opinion, the admitted case of the workman was that he was employed by Ms Sangam Cold Storage and his services had also been terminated by the said firm, hence benefit of reinstatement with full back wages etc. could not have been granted against the establishment of the petitioner.
16. The case of the workman was that his name was not entered in the Attendance Register by his employer i.e. M/s Sangam Cold Storage as such the Tribunal has committed an error in drawing inference against M/s Sangam Cold Storage as well as against the petitioner who was never his employer. In the circumstances, non-filing of the Attendance Register for a period of one year by M/s Sangam Cold Storage was of no consequence at all.
17. It is apparent from the record and the evidence of the workman that the workman does not know as to which are the owners of both the Cold Storages i.e. M/s Kesarwani Sheetalaya and M/s Sangam Cold Storage. He has admitted that he has taken the receipt of loading potato from the farmers in M/s Kesarwani Sheetalaya for his, duty and that he has not filed any documentary proof to establish his case as to who was his employer. The relevant portion of the statement of workman is as under:-
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18. It is admitted fact that workman claims himself to be employee of M/s Sangam Cold Storage. No appointment letter was issued to the workman by it which claimed that the workman had been engaged only for a period of one month in March, 1997 to meet the exigency of work in peak season. It is also admitted that and there was no relationship of master and servant between the petitioner M/s Kesarwani Sheetalaya and the workman thereafter. No documentary evidence was filed by the workman to prove that he was ever appointed by M/s Kesarwani Sheetalaya.
19. It is not in dispute that M/s Sangam Cold Storage has been closed down w.e.f. 18.6.1999 and a settlement has been arrived at between 9 workmen out of 11 working in M/s Sangam Cold Storage and one has given his resignation after the closure of the establishment. Sri Suresh Chandra Kesarwani, the partner who has appeared as witness denied that the workman had ever worked in the petitioner's establishment as well as in M/s Sangam Cold Storage but he stated that he had worked for one month in March 1997. He also denied the fact that respondent No. 3 workman had worked 240 days continuously after he was disengaged from M/s Sangam Cold Storage when he was kept for a period of one month.
20. After closure of M/s Sangam Cold Storage electricity connection etc. were disconnected. If the assets of the dead closed firm M/s Sangam Cold Storage were taken over by the petitioner from M/s Kesarwani Cold Storage, after the closure it would not mean that all the liabilities of the petitioner establishment has been taken over the liabilities of the erstwhile M/s Sangam Cold Storage. The workman has failed to establish the burden of proof before the Industrial Tribunal that the assets as well as liabilities of M/s Sangam Cold Storage were taken over and merged into M/s Kesarwani Sheetalaya as a running...concern or that M/s Kesarwani Sheetalaya had taken over all the assets and liabilities of M/s Sangam Cold Storage even after its closure.
21. From the record it is apparent that the workman claims that he has worked 240 days continuously in M/s Sangam Cold Storage whereas it is denied by the employer. Heavy burden lay on the workman to discharge his burden of proof in this regard, which was not discharged by him. The Industrial Tribunal while deciding the case has held that:-
No doubt it was the duty of the workman to establish that he worked with any of the two opposite parties. But, however, in the present case it has been admitted in the written statement of the employers that Sir Rajesh Singh did serve M/s Sangam Cold Storage. In paragraph 7 of the written statement it was specifically stated that for short duration and for extra work Sri Rajesh Singh was engaged by M/s Sangam Cold Storage, Soraon, Allahabad. Thus it was for the employers to show that the workman was not employed by any of the employers in which attempt they have utterly failed. The statement of Rajesh Singh that he worked in Sangam Cold Storage from 10.1.1995 to 27.6.1997 has to be believed in the circumstances of this case. There is no reason whatsoever not to rely on the statement of Sri Rajesh Singh that he worked for the said period and he was removed from service on 27.6.97. His statement finds support from Ex.W-2 dated 6.11.96 and Ex.W-3 dated 6.11.96.
22. It is evident that the Industrial Tribunal has shifted the burden of proof on the employer to show that respondent No. 3 has worked in his establishment. The Tribunal has thus committed an illegality in shifting the burden of proof on the workman to prove that he was employed by M/s Kesarwani Sheetalya i.e. the petitioner. In the admitted fads of the case per contra the workman unequivocally in his written statement as well as in his evidence has taken a stand that he was employed by M/s Sangam Cold Storage and his services were also terminated by the said establishment. The petitioner cannot be fastened with liabilities of reinstatement of the workman etc. of any other firm which was a separate arid distinct legal entity and the Tribunal has committed an error apparent on the face of the record and in law in granting relief of reinstatement to the workman with full back wages against the petitioner. The findings of the Industrial Tribunal are perverse, illegal and are not based on any material on record. The relief granted to respondent No. 3 against the petitioner is without assigning any reason and discussion. Since, there was no relationship of master and servant between the petitioner and the respondent No. 3 the Tribunal could not have granted relief to him against the petitioner.
23. For the reasons stated above, the petition is allowed. No order as to costs. Dated 7.2.2006