Heard Sri Siddharth, learned counsel for the petitioner and Sri S.S. Nigam, learned counsel appearing on behalf of respondent no.2.
The writ petition has been filed challenging the award dated 24.2.1998 published on 31.7.1998.
The case of the petitioner workman is that he was employed on the post of Supervisor in the factory of respondent no. 2 from March, 1990 and on 1.2.1993 his services were terminated by the respondent no.2. The petitioner raised industrial dispute after failure of the reconciliation proceedings, the State Government made a reference under Section 4-A of the U.P. Industrial Disputes Act, 1947(hereinafter referred to as the 'Act'). The disputed reference for adjudication is as follows:-
"Whether the removal of their workman Subodh Kumar son of Ilam Singh from the Service by the employers on 01.02,1993 is unjust and illegal? If yes, then to what relief/benefits is the concerned workman entitled to and with details?"
The Adjudication case No. 172 of 94 was registered. The workman filed his written statement through Union. It was stated therein that he was employed in the establishment of respondent no. 2 as Bottle Washing Supervisor for more than two and half years and rendered continuous service but his services were terminated with effect from 01.02.1993 orally without any order. The act of respondent no. 2 in terminating the services of the petitioner comes within the meaning of retrenchment and the benefit of Section 6-N of the Act should be given to him. The termination is void and illegal and the petitioner is entitled to reinstatement with all back wages and other consequential benefits.
The employer respondent no. 2 in their written statement tried to set up a case that the petitioner was not employed by them and he is not covered under the definition of workman under Section 2(Z) of the Act. It was further stated therein that the respondent establishment is registered under the Factories Act and other relevant Acts which are applicable on the workman factory. The factory is also registered under Section 7(2) of the Contract Labour(Regulation and Abolition) Act, 1970 and the registration certificate was issued under the said Act. The contractors are employed from time to time in the factory and the workman was employed through the contractor. There was no relationship of employer and employee with the workers employed through contractor. The petitioner being one of them, there was no question of termination of his services. The additional issue was framed after exchange of affidavits between the parties by the Labour Court which is as follows:-
"Whether there was relationship of employer and Servant between the concerned workman (Subodh Kumar) and the employer? If no, then its effects ?"
In support of his case, the workman filed 15 exhibits (Ex.-W-1 to Ex.- W-15). The copies of these documents have been annexed as annexure 1 to the writ petition. The respondent employer filed 17 documents namely, registration certificate issued under the Contract Labour Act, attendance register etc. Statement of the workman was recorded alongwith two other employees. By the award dated 24.2.1998, the reference was decided against the petitioner and it was held that there was no employee-employer relationship between the workman and the respondent no.2. The petitioner was not workman of the respondent establishment and was employed through contractor as such industrial dispute raised by him cannot be adverted to.
Sri Siddharth, learned counsel for the petitioner submits that award passed by the labour court is illegal and is based on misreading of evidences of the record. The labour court has misconstrued the documents namely exhibits W-5 and Ex. W-7. The witness of the employer has failed to corroborate the documents Ex. W-5 to W-7 in his statement recorded before the labour court. He expressed his ignorance about the name of the contractor who was given contract of washing bottles during the period in which the petitioner was employed. Despite the said fact, the labour court on the basis of the statement of witness of employer has recorded wrong finding that the petitioner was not direct employee of the respondent employer.
Another submission is that the petitioner has completed more than 240 days in the respondent establishment. The respondent employer in paragraph 3 of the written statement stated that they have records of working of all the workmen employed by them directly and produced record of years 1994, 1995 and 1996 whereas the record of relevant years 1990 to 1993 was withheld by them. In case, the said record would have been produced before the labour court, it would have established the engagement of the petitioner workman. He further submitted that adverse inference may be drawn against the employer respondent for not producing the best evidence in their possession. In support of his argument, he relied upon judgment of the Apex Court in H.D. Singh vs. Reserve Bank of India and others(S.C.) reported in 1985(51) FLR 494 and in Sriram Industrial Enterprises Ltd. vs. Mahak Singh & others reported in (2007) 4 SCC 94.
He further submits that the employers have failed to discharge the burden laid upon them that they have not indulged in unfair labour practice. On burden of proof, learned counsel for the petitioner relied upon judgments in Amar Chakravary & others vs. Maruti Suzuki India Limited reported in (2010) 14 SCC 471 and U.P. State Electricity Board vs. P.O. Lab Ct. Bareilly and others 1993(67) FLR 802.
Sri S.S. Nigam, learned counsel for respondent no. 2 drawn attention of the court to the written statement of the respondent employer which has been annexed as annexure CA-2 to the counter affidavit filed on behalf of respondent employer. In the written statement, preliminary objection was raised to the effect that the petitioner workman was not directly employed by the employer. He was never employed as a Supervisor or on any other post. The employer factory is engaged in manufacturing of Indian made foreign liquor and for the purpose employer engages a number of workers whose terms and conditions of employment are governed by set of standing orders implemented by the State Government under Section 3-B of the Industrial Disputes Act, 1947. The respondent employer also engages contractors for various jobs who in turn employ their own workers for executing the contract. In some of the cases, contractors as also the workmen are given benefit of wages through Provident Fund, ESI etc. The relationship of master and servant was categorically denied and it was stated that the dispute raised by the petitioner does not come within the meaning of industrial disputes Act as he is not workman within the meaning of the Act.
He further submits that rejoinder affidavit filed on behalf of the petitioner employee in reply to written statement of employer before the labour court is on record and is annexed as annexure CA-3 to the counter affidavit. A categorical statement made by the employer in paragraph 5 of the written statement has not been replied in the rejoinder affidavit. The burden of proof to establish relationship of master and servant was upon the employee and he has failed to discharge the same. There is nothing on record to suggest that the petitioner was direct employee of the respondent employer. The plea of unfair labour practice taken by the learned counsel for the petitioner is without any basis.
Further submission is that the labour court after examining the documents and the oral statement of both the parties had adjudicated upon the additional issue framed by it as to whether there was an employer-employee relationship between the petitioner workman and the respondent employer. The labour court while examining the said issue has opined that burden of proof to establish the relationship of master and servant was upon the workman. The workmen has failed to produce any documents to establish the same. On the other hand, a perusal of Ex. W-5 and W-7 shows that the employer while making complaints regarding working of the petitioner wrote letters to the petitioner and sent copies of the same to the contractors giving warning to them that in case of any loss, the same would be deducted from their bills.
The labour court after considering all these documents had concluded that employment of workman was through contractor and he was not direct employee of the respondent employer. The labour court further considered the documents submitted by the employers and the submission that the establishment was registered under the Contract Labour Regulation Act, 1970. The registration certificate contains names of contractor and the attendance register produced by the employer contains names of employees who are in their direct employment. The labour court lastly concluded that the the contention of the employer was corroborated by the documents namely paper no. W-5 and W-7 filed by the petitioner employee. The petitioner employee has failed to show that he was not employed through contractor and there was master-servant relationship.
On the question of 240 days of working a finding of fact has been recorded that the employee has not produced single document establishing his contention. Further, since he was employed through contractor, he is not workman within the meaning of the Act, as such the period of working in the establishment is of no avail.
Heard learned counsel for the parties and perused the record.
From perusal of the documents, namely W-5 & W-7 and the written statement filed on behalf of the employers and the employee, it is evident that the case of the employer since its inception was that the petitioner is not a workman within the meaning of Section 2(Z) of the Industrial Disputes Act.
In paragraph 5 of the written statement filed by the employer it has been categorically stated that the petitioner Subodh Kumar son of Ilam Singh was never employed as Supervisor or on any other post by the employers. Paragraph 3 of the written statement filed by the employee remained unrebutted in the rejoinder affidavit filed by the Union on behalf of the employee which is annexed as CA-3 to the counter affidavit filed by the employers.
In the rejoinder affidavit filed on behalf of the workman in reply to the written statement filed by the employer, there is no denial to paragraph 5 of the written statement. This apart, Ex. W-5 and W-7 are the letters produced by the employee which shows that they were addressed to him and copy of the same was sent to the Contractors with the warning to look into the working of the petitioner and to ensure that no complaints are found in future. The names of the contractor also finds place in the registration certificate under the Contract Labour Regulation Act, 1970.
Further, the petitioner employee in the statement recorded in main examination had admitted that he was engaged in washing of bottles, checking of seals, labeling and counting of the same. He was also doing the work of loading. In his cross-examination, he had admitted that he was doing work mentioned in his main examination. He also stated that in the year 1990-91, the contract of washing of bottles was given to contractors whose names were mentioned in the statement. The work of loading and unloading of bottles was also being carried out by the contractors.
In the writ petition as also in the rejoinder affidavit, the petitioner employee has failed to make out any case contrary to what he had stated on oath before the labour court in his statement recorded there. The contention that statement of employer's witness J.P. Tripathi does not corroborate the documents Ex. W-5 and Ex. W-7 is misconceived.
A careful perusal of the documents filed before the labour court clearly establishes that the petitioner was employed through contractor and moreso in view of his own admission that the work of washing of bottles, loading, unloading which was being done by him in the respondent establishment was entrusted to him through contractors.
There cannot be any dispute to the well settled principle of law that in any proceedings the burden to prove a fact lies on the party which pleads the same and not on the party who denies it. The Apex Court in Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza reported in (2009) 1 SCC 20 has held in paragraph 20 as under:-
"It is trite that the burden to prove that a claimant was in the employment of a particular management, primarily lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management. "
Further, in General Manager, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon vs. Bharat Lal and another reported in (2011)1 SCC 635, the test to determine as to whether the contract labourers are direct employees of the principal employer has been laid down in paragraph 10 which is quoted below:-
"10....Two of the well-recognised tests to find out whether the contract labourers are the direct employees of the principal employer are : (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee...."
The Apex Court has considered the expression "Control and Supervision" in the context of direct labour as was explained in International Airport Authority of India vs. International Air Cargo Workers' Union and another reported in (2009) 13 SCC 374. Relevant paragraphs 38 and 39 of the said judgment are quoted below:-
"38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For Example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor. "
"39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/ sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
It is settled law that the court can find as to whether the contract between the principal employer and the contractor is a sham, nominal or merely camouflage to defy an employee. In the event, it finds the same, it can grant relief to the employee by holding that he is in direct employment of principal employer.
In the instant case, there is nothing on record to suggest that the petitioner was either direct employee of the respondent employer or the contract between the principal employer & the contractor is sham.
Now considering the contention of the learned counsel for the petitioner that adverse inference should be drawn against the employer for non-production of attendance register, it cannot be accepted in view of the own statement of the employee who had accepted that the work which was being done by him in the respondent establishment, was carried out through contractors engaged by the establishment.
There is no other circumstance or reason for not accepting the documents filed by the petitioner which contain the names of contractors who were engaged by the respondent employer.
In the judgments relied upon by the learned counsel for the petitioner on the question of adverse inference in the case of H.D. Singh vs. Reserve Bank of India and others(S.C.) reported in 1985(51) FLR 494 and in Sriram Industrial Enterprises Ltd. vs. Mahak Singh & others reported in (2007) 4 SCC 94, the facts and circumstances of the cases are different from that of the present case. In H.D. Singh (supra) the employees were daily rated workers and there was no dispute of employer-employee relationship. In the case of Sriram(supra) the respondents were admittedly the workmen of the appellant establishment and only dispute therein was as to whether they had worked for more than 240 days and entitled for reinstatement.
The other two judgments on the point of burden of proof relied upon by the learned counsel for the petitioner are not applicable in the facts and circumstances of the case. In case of Amar Chakravary (supra), on the question of dismissal of workmen without holding enquiry, the Apex Court held that burden to prove the fact of misconduct by the workmen lies upon the employer and not on the workmen who denied it. It was held that the workman cannot be asked to prove that he has not committed any act amounting to misconduct. The ratio of judgments laid down in the said judgment is of no benefit to the petitioner in the present case, as the burden of proving the fact of employment i.e. master-servant relationship lies upon him as he asserts the same in affirmation while the employer denied it. In the case of U.P. State Industrial (supra), the court did not rely upon the statement of the employer for the reason that pleadings of the Electricity Board in the written statement were sketchy, denying the averment. The labour court further noticed that the names of contractors have not been disclosed. The said case has been decided in its own facts and circumstances and is of no benefit to the petitioner.
In the instant case, the employer has come out with the clear assertion that the factory was registered under the Contract Labour (Regulation & Abolition) Act, 1970. The registration certificate contains the names of the contractors who were engaged to carry out the work of washing of bottles, loading and unloading etc. The petitioner workman admitted in his statement that he was doing the work of cleaning of bottles, labelling, loading etc. and also admitted that the contractors were engaged for the purpose. The documents filed by the petitioner, namely W-5 and W-7 contain names of contractors.
The findings recorded by the labour court are based on the consideration of the evidences on record and in view of the above discussion, the inevitable conclusion is that labour court has rightly held that onus to prove master-servant relationship was upon the petitioner and he has failed to discharge the same, and there was no master-servant relationship.
There is no question of drawing adverse inference against the employer, as the working of more than 240 days in the establishment is of no consequence.
For the foregoing reasons, the award passed by the labour court dated 24.2.1998 is upheld. The writ petition lacks merit and is accordingly dismissed.
Order Date :-7.9.2012 P.P.