JUDGMENT Rakesh Tiwari, J.
1. Heard the counsel for the parties and perused the record.
2. The petitioner has filed the present writ petition challenging the impugned award dated 26.3.1999 passed by Labour Court in Adjudication Case No. 8 of 1998, Annexure-9 to the writ petition treating respondent No. 1 with continuity in service and back wages from the date of his termination dated 1.6.1995.
3. The brief facts of the case as they appear from record are that the petitioner has a photostat machine installed in a room of 12 x 8 feet. The shop was registered with the Director of Industries having its Registration No. SSI 53612. There are two electrostat machines in the shop. One of the machines is used for job work and another is used for display to secure orders for sale of the electrostat machine on commission. It is alleged that the workman required an experience certificate for applying for job elsewhere and the same was given to him on 8.12,1990 by the proprietor of the shop. Thereafter the workman worked in the petitioner's establishment as helper till 10.12.1990. The petitioner alleged that after taking experience certificate, he left the job himself for better prospects.
4. Respondent No. 1 raised an industrial dispute before the Regional Conciliation Officer, Varanasi. On conciliation proceedings having failed, the following reference was made by the State Government in exercise of powers under Section 4K of the U. P. Industrial Disputes Act, 1947 :
"Kiya sewayojkon dwara apne shramik Basudev Gupta putra Shri Bachnu Gupta kee sewayen dinank 1.6.1995 se samapt kiya jana uchit tatha/athwa vaidhanik hai? Yadi Nahe to sambandhit shramik kiya hitlabh pane ka Adhikari hai."
5. The contention of the counsel for the petitioner, is that the proprietor himself carries on the business as the establishment is not a big enough to employ more than one person as helper. He engaged respondent No. 1 as electrostat operator/helper in July, 1981 who worked in his establishment till 10.12.1990. After getting the experience certificate, he left petitioner's employment for better prospects. Thereafter one Rajesh Kumar worked with the petitioner as helper till October, 1998. Subsequently one Surendra Kumar worked as helper till 1.9.1999 and left the job when he got employment in Jal Nigam and thereafter Chandra Kant Misra was working as helper.
6. Before the Labour Court the case of respondent No. 1 was that he was working in petitioner's establishment since July, 1981 as electrostat machine operator and was getting salary of Rs. 950 per month. His salary was stopped since 1993 due to financial problems faced by the petitioner but he continued to work as electrostat operator till 1995 without getting any salary from the petitioner and did not raise any objection.
7. The counsel for the respondent No. 1 has further drawn the attention of the Court to the evidence of the employer wherein it has been stated that the petitioner had neither filed the registration certificate before the Labour Court nor the attendance register of the workman was maintained by him and the petitioner has also not filed any receipt regarding payment of wages to the workman,
8. Counsel for the petitioner has argued that the petitioner has a very small shop for his livelihood and the same does not come within the purview of an industry and the whole case set up by the answering respondent before the labour court is incorrect and unbelievable. He has relied upon para 111 of the decision of the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board v. Rajappa and Ors., AIR 1978 SC 548, which is as under :
"A single lawyer, a rural medical practitioner of urban doctor with a little assistant and/or menial servant may ply a profession but may not be said to run an industry. That is not because the employee does not make a contribution nor because the profession is too high to be classified as a trade or industry with its commercial connotations but because there is nothing like organised labour in such employment. The image of industry or even quasi industry is one of a plurality of workman, not an isolated or single little assistant or attendant. The latter category is more or less like personal avocation for livelihood taking some paid or part time from another. The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or blacksmith in a town who sits with his son or assistant to work for the customers who trek in. The ordinary spectacle of a cobbler and his assistant or a cycle repair with a helper, we come across in the pavements of cities and towns, repels the idea of industry and industrial dispute. For this reason, which applies all along the line, to small professions, petty handicraft men, domestic servants and the like, the solicitor or doctor or rural engineer, even like the butcher, the baker and the candle stick maker, with an assistant or without, does not fall within the definition of industry."
9. The Labour Court by the impugned award held that the petitioner was s shop keeper and his establishment was duly registered with the Director of Industries. He had neither produced the attendance register as required to be maintained under Section 32 read with Rule 18 (1) (a) of the U. P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 nor produced Rajesh Kumar who had worked as helper with the petitioner to show that he was working in petitioner's establishment after the respondent-workman had left the job. The Labour Court further held that the burden of proof is on the petitioner to establish that the workman had left the job himself and as no evidence had been filed by the petitioner regarding closure of the establishment. The workman was granted the relief of reinstatement and continuity of service with full back wages.
10. The Hon'ble Supreme Court in Range Forest Officer v. S.T. Handimani, 2002 (4) AWC 1268 (SC) : 2002 (94) FLR 622, held as under :
"The Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in a year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that as workman had, in fact, worked for 240 days in a year. No proof of receipt or salary or wages for 24O days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
11. He further relied upon the decision of this Court in Meritec India Ltd. v. State of U. P. and Ors., 1996 (3) AWC 2.220 (NOC) : 1996 FLR. This Court has held as under :
"Section 5C (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 5C (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 care 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 matter was dealt with by the Apex Court in Shankar Chaudhary v. Britannia Biscuits Co. Ltd. In paragraph 30, the Court held that the Labour Court or the Industrial Tribunal have all the trappings of a court. In paragraph 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."
12. Similar view has been taken by the Apex Court in V.K. Raj Industries v. Labour Court and Ors., 1979 (39) FLR 70, to the effect as under :
"The proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act does not apply to the proceedings but the principle underlying the said Act is applicable to the proceeding before the Industrial Court. In a judicial proceeding, if no evidence is produced the party challenging the validity of the order must fail. It is well settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the party invoking jurisdiction of the Court must fail. Whenever, a workman raises a dispute challenging the validity of the termination of service it is imperative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case. If the workman fails to appear or file written statement or produce evidence the dispute referred to by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief."
13. From the aforesaid settled position of law, it emerges that the burden of proof is on the workman or on the person, who raises the dispute and not upon the employer and that the onus will be shifted on the employer only when the burden of proof is being discharged by the workman and if burden is not discharged by him, his case must fail.
14. In the instant case the workman has not filed any documentary evidence nor has filed any application for summoning Rajesh Kumar or the attendance register from the employer. The petitioner could not lead any negative evidence to prove that after taking the experience certificate, respondent No. 1 had himself left the job to get employment elsewhere. How attendance register of an employee can be maintained, if he is not in job? How could he produce Rajesh Kumar, who had left the job in the year 1988? The employer had candidly admitted that he had not maintained the attendance register then how he was expected to produce the attendance register.
15. The Labour Court has committed an error on the face of record in shifting the burden of proof on the petitioner. The petitioner had filed documents, such as certificate of Director of Industries, Certificate issued by the Sales-tax, Balance for the year 1993-94, Income Return and day-book for the relevant year. Since Rajesh Kumar had already left the job, his whereabout was not known, otherwise he could have called him to give evidence. The contention of the petitioner has force.
16. The contention of the respondent is that the Labour Court held that the employer deliberately retained the attendance register as required to maintain under Section 32 read with Rule 18 (1) (a) of Dookan Aur Vanijya Adhisthan Adhiniyam, 1962, that the employer-petitioner has failed to establish that the workman has not performed his duties and prior to termination of service of the workman that no notice or opportunity or any retrenchment compensation has been awarded and as such the termination order is legal and accordingly is misconceived.
17. The establishment does not employ organised labour and is rendering service. The sale of Photostat machines is done by the proprietor himself with the help of a helper/assistant. There is no evidence of plurality of employee, i.e., that two or more persons are employed. A small shop is not required under the Industries Act, 1951 to maintain the attendance register having only an employee.
18. In the instant case, the employer was not duty bound to maintain attendance register and other documents in view of the provisions of the Establishment Act. There was no mandatory requirement to maintain all the documents. From the entries made in the documents submitted by the petitioner such as day-book and the balance sheet, the Labour Court could have easily seen whether the respondent-workman abandoned employment after taking the experience certificate or that he had been working in petitioner's establishment, as claimed by him. The very small shops and commercial establishments are exempted under the Shop and Commercial Establishment Act. From the facts of the case, it is evident that the work was done by the proprietor himself with the helper. There is no evidence on record that the establishment of the petitioner is big and a number of employees are employed in the shop. The Labour Court has not looked into the facts stated above and the adverse inference drawn by him is misconceived.
19. In the end the counsel for the respondents has relied upon a Division Bench of this Court in Rakesh Kumar v. U. P. State Public Service Tribunal and Ors., 2002 (1) AWC 404 : 2002 (1) UPLBEC 319, and has submitted that the plea that the petitioner is not a industry, was not raised before the Tribunal, it is not open to raise a new plea for the first time in the writ petition.
20. The question whether the establishment of the petitioner comes within the definition of industry or not, is a pure question of law and can be raised in the writ petition as it goes to the very root of jurisdiction of the Labour Court.
21. The findings of the labour court that the petitioner is an industry and the order of termination of respondent is illegal and ordered for reinstatement with back wages, is illegal and perverse and is liable to be set aside, as such the relief of reinstatement of the respondent workman could not have been granted.
22. For the reasons stated above, the writ petition is allowed and the impugned order dated 26.3.1999 is set aside. No order as to costs.