1- Heard Sri Ranjit Saxena, learned counsel for the petitioner, Sri Jamal Khan, learned counsel for respondent nos. 2 and 3 and Ms Suman Sirohi, learned Standing Counsel for respondent no.1.
2- Briefly stated the facts of the present case are that Vikram Singh, respondent no.1 was appointed by the petitioner corporation on the post of Chowkidar/Security-guard and he was working since 16.3.1990. It is alleged that without giving any notice or prior intimation and without any charges he was ousted from service on 26.3.1994. Thereupon, the respondent no.1 sent a legal notice dated 2.4.1994 through his counsel stating therein that substantive vacancy is available in the Corporation and since, he has completed 240 days uninterrupted service and therefore, the respondent no.1 is entitled to be regularised.
3- Petitioner sent a reply dated 19.4.1994 denying the allegations of the notice and stated that the security purposes, the services of one M/s Shreshtha Shanti Suraksha Bal, New Agra, as required from time to time was taken and they sent a security-guard, i.e., respondent no.1, and in lieu of the services rendered by the security agency, payment was made by the Corporation to the said security agency. The respondent no.1 raised industrial dispute. In support of the allegation, the respondent no.1 filed documents, namely, letter dated 11.4.1992 sent by the Regional Manager, Agra to the District Magistrate, Agra, requesting him to issue arm licnece to the respondent no.1 for his self defence, as he performs night duty as a security guard in the office of the Corporation. The respondent no.1 has also filed copy of the office order dated 8.6.1993 as evidence, which was issued by the Assistant Manager (Technical) directing them to perform duties from 9.6.1993 to 11.6.1993.
4- The respondent no.1 required certain documents to be produced by the petitioner, but the petitioner shown his inability to produce those documents on the ground that the same relates to the security agency, which may be with them. The services taken by the petitioner from the security agency from time to time was for the purposes of security of units of which possession was taken under section 29 of the State Financial Corporation Act. For rendering security services, the respondent no.1 sent a security-guard and payments in lieu thereof were made to them after deduction of tax. The petitioner submitted before the respondent no.2, that they have no concern or relation with the respondent no.1, who is not their employee. The respondent no.2 considered the submissions of the parties and the evidences on record and came to the conclusion that the respondent no.1 has been retrenched in violation of Section 6-N of the U.P. Industrial Disputes Act, 1947 and as such he is liable to be reinstated in service along with 50% back wages w.e.f. 1.3.1994 i.e., the date of termination from service. To arrive at this conclusion respondent no.2 recorded findings that the respondent no.1 is a contract labour since the petitioner failed to produce valid license under the Contract Labour (Regulation and Abolition ) Act, 1970, copy of the agreement with the security agency and the related rules have not been filed. Paper No.D-5 is a letter of the department in which respondent no.1 has been alleged to be a chowkidar. This letter is said to be issued by the Assistant Manager (Technical) on 8.6.1993.
Submission on behalf of the petitioner 5- Shri Ranjit Saxena submits that the respondent no.1 was not employee of the petitioner's Corporation. The appointment and the services of the employees of the Corporation are regulated by its own regulation. The petitioner's Corporation is a government owned corporation where no appointments is made orally, but only by way of written orders/appointment letters. As per need from time to time security-guards are required for security of mortgaged property, which are taken over in exercise of powers conferred under section 29 of the State Financial Corporation Act, and for which the services 3 of M/s Shreshtha Shanti Suraksha Bal, Indrapuri, New Agra, were taken and the respondent no.1was sent to perform his duty as security-guard and payments in lieu of security service was made to the said agency after deducting the tax at source.
6- He submits that the entire claim of the respondent no.1 was wholly baseless and unbelievable. The respondent no.2 committed manifest error of law in shifting the burden of proof upon the petitioner that the respondent no.1 was not his employee. The respondent no.1 was not employee of the Corporation and consequently, he could not produce any evidence of his appointment or the pay slips etc. He submits that even if, the rejoinder affidavit could not be filed before the respondent no.2, yet the respondent no.2 should not have allowed the claim of respondent no.1 without there being any evidence and discharge of burden by the respondent no.1, that he is employee of the Corporation. He submits that the letter dated 11.4.1992 sent by the Regional Manager to the District Magistrate, Agra, recommending for grant of arm licnece for self-defence to the respondent no.1, prima-facie, does not establish that the respondent no.1 was employed in the petitioner's Corporation. Likewise, office order dated 8.6.1993 issued by the Assistant Manager (Technical ) that one Sri Tahir shall perform his duty as Chowkidar from 9.6.1993 to 11.6.1993 in place of the respondent no.1, was merely an arrangement for security purposes. He submits that it was in the usual course of availing services of a security agency that when guards are deputed or replaced, the officers of the Corporation directs the guard to remain present at a particular place for security which direction was issued by the Corporation to meet its own requirement.
7- In support of his submission Sri Saxena relied upon the following decisions :
1. U.P. State Warehousing Corporation, Lucknow and another v. Presiding Officer, Industrial Tribunal (I), U.P. Allahabad & another, reported in 2013 (138) FLR 1008 (paragraph Nos. 26 & 27) ;
2. U.P. State Road Transport Corporation, Bareilly v. Ram Chet Chauhan and others, reported in 2013 (137) FLR 784 (paragraph-9) ;
3. M/s Central Distillery and Breweries Ltd. v. Labour Court & 4 another reported in 2012 (135) FLR 871 (paragraph-3) ;
4. Deputy General Manager, State Bank of India v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court & another reported in 2009 (1) AWC 27 (Alld.) (paragraph Nos. 14,15 & 16).
8- Lastly, Shri Ranjit Saxena, learned counsel for the petitioner has placed reliance in the case of Krishna Bhagya Jala Nigam Limited v. Mohammed Rafi reported in (2009) 11 SCC 522 in which the Hon'ble Supreme Court has held that the burden of proof as to completion of 240 days of continuous work in a year lies on the aggrieved workman.
Submission on behalf of respondents 9- Shri Jamal Khan submits that the respondent no.1 has discharged its burden by producing the evidences (paper no.D-1 and D-5), letter dated 11.4.1993 and the office order dated 8.6.1993. He submits that the agreement and the licence of contract labour and certain other documents were directed to be produced but the same were not produced. He submits that since the initial burden of employment of the petitioner was discharged by the respondent no.1 and as such the burden shifted upon the petitioner to disprove it which they have failed to do. He submits that the findings with regard to the employment of respondent no.1 and the illegal termination are the findings of fact which cannot be interfered with in exercise of power under Article 226 of the Constitution of India, unless the petitioner shows the findings so recorded are perverse or based on no evidence.
10- In support of his submissions he relied upon the decision of this Court in the case of I.C.I. (India) Limited (Formerly I.E.L.), Fertilizer Division, Panki, Kanpur, reported in 2012 (133) FLR 976 (Paragraph-19 and 29) as under.
"19. Now, I come to the second facet, the alternate case set up by the employer. In such cases where the plea of contractor's labour is set up by the industrial establishment, the initial burden to prove that it had engaged a contractor for certain requisite purposes, and that the workman, raising industrial dispute was engaged by such contractor, are the facts to be proved by Industrial Establishment. Initial burden lie upon Industrial Establishment and only when such onus is discharged or the above facts are admitted by workman only then the onus would shift upon the workman to prove existence of relationship of employer and employee directly with the concerned Industrial Establishment.
29. Normally the relationship of employer and employee does not exist between the employer and contractor and servant of an independent contractor. However, where the employer retains or assumes control over the means and method by which work of a contractor is to be done, it may be said that relationship between employer and employee exists between him and the servant of such a contractor."
11- He also relied upon the letter dated 2.4.1994 (filed as Annexure-6) and submits that this letter itself proves that the respondent no.1 was removed from duty on 26.3.1994, which is reproduced below :
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I3- I find that it is undisputed that the petitioner is a government corporation. The notice dated 2.4.1994 sent by the respondent no.1 through his counsel to the petitioner clearly indicates that the petitioner wanted to be regularised on the ground that he has worked for more than 240 days and substantive vacancy exists. The respondent no.1 has not produced any primary evidence of his being an employee of the petitioner Corporation, namely, appointment letter, copy of the pay slips, proof of receipt of salary from the Corporation etc. Merely because a letter was written by an officer of the petitioner Corporation to the District Magistrate dated 11.4.1992 recommending for grant of an arm licence to the respondent no.1 for his self defence and the office order dated 8.6.1993 in respect to duty of security guard instructing one Sri Tahir to perform the duty in place of respondent no.1 due to his absence from duty between 9.6.1993 to 11.6.1993, prima-facie do not establish that the respondent no.1 was an employee of the petitioner Corporation. The petitioner Corporation is not a private establishment, but a government corporation, where oral appointments are not made. The appointments are made according to the rules and regulations and by written orders.
14- In these circumstances, when the respondent no.1 filed claim alleging himself to be an employee of the petitioner Corporation, then he should have led some positive evidence to prove prima-facie that he is an employee of the petitioner Corporation and the relation of employer and employee exists. The respondent no.1 has not discharged this burden yet the respondent no.2 shifted the burden on the petitioner.
15- The petitioner is a government corporation, but there is no whisper of any document by the workman with regard to pay/salary and the manner and mode of his appointment. Even no appointment letter has been filed. The respondent no.1 has not even filed the termination letter, which is alleged to have been issued by the petitioner. It is alleged that the letter dated 2.4.1994 referred in para 2.3 of the impugned award, is the termination order which has been reproduced above. A perusal of this letter shows that it is addressed 7 to M/s Shreshtha Shanti Suraksha Bal, Indrapuri, New Agra intimating that now there is no need of security-guard to the Corporation and as such the security-guard may not be sent to the office of the Corporation. This letter bears an endorsement dated 2.4.1994 by the Security Officer of the said security agency that the respondent no.1 has been taken out from duty from 26.1.1994 and the bill for duty for ten days has been given.
16- In the case of U.P. State Warehousing Corporation, Lucknow and another, this Court has held in paragraphs-26 and 27 as under :
"26. In General Manager (OSD), Bengal Nagpur Cotton Mills Rajnandgaon v. Bharat Lal, the Supreme Court held that the onus of proving that he is employee of principal employer lies on the employee and the mere fact that the contract labour was assigned duties by the officers of the principal employer did not make him a direct employee of the principal employer."
In R.M.Yellatti Vs. Assistant Executive Engineer, the Supreme Court held that the burden of proof with regard to completion of 240 days of continuous work in a calender year was upon the workman to prove that he had worked for 240 days . The Supreme Court held that merely by deposing or filing an affidavit to that effect was not sufficient to discharge the burden.
In Manager, R.B.I., Bangalore Vs. S.Mani and others, the Supreme Court held that the initial burden was upon the workers to show that they had rendered 240 days of service and that the onus having not been discharged, the Tribunal erred in shifting the burden upon the appellant.
27. In the light of the aforesaid, the Court finds that the labour court committed a manifest error in holding that the Union has proved its case. The labour court committed a manifest error in putting the entire burden upon the employer, which is against the settled principle of law. The Court finds that the workers or the union have not been able to prove their case. Consequently, the award of the labour court cannot be sustained and is quashed."
17- The above noted judgments refers to the law laid down by Hon'ble Supreme Court wherein it has been held that the initial burden to prove that he is employee of principal employer lies on the employee and the mere fact that the contract labour was assigned duties by the officers of the principal employer did not make him a direct employee of the principal employer. Mere deposing or filing of 8 an affidavit by the respondent no.1 alleging that he had performed continuous service of 240 days is not sufficient to discharge the burden of proof. Initial burden was upon the respondent no.1 to prove that he was in service of the petitioner and rendered 240 days continuous service. This has not been discharged. Hence, the respondent no.2 could not have shifted the burden upon the petitioner.
18- In the case of U.P. State Road Transport Corporation, Bareilly (supra) following the earlier decision the Court has observed that the labour court is not required to look into evidence in the light of the standard of proof as a criminal trial. This judgment relied upon by Sri Saxena is not applicable in the present case, since in the impugned award, the respondent no.2 has not applied the standard of proof as applicable in criminal trial.
19- In the case of M/s Central Distillery and Breweries Ltd. (Supra), this Court has held as under :
" Be that as it may, the fact remains that on a certificate issued by the maintenance engineer it cannot be concluded that the workman was employed in the concerned department of the petitioner. Workman was still required to prove that he was employed in establishment of the petitioner for which necessary document was required to be shown by him. Even if, it is assumed that the certificate has been issued by the engineer, it does not prove that the workman has been working since 1987 to 1989. There is no other proof shown by the workman which would conclude that he was employed in the year, 1984. Even though, petitioner also has not been able to affirm his contention that the respondent workman was engaged by a contractor and had worked in the department. The only area of dispute i.e. required to be resolved is as to whether the workman was employed in the industry by a contractor or by the establishment. Reliance placed by the Labour Court on a certificate issued by the Engineer does not conclusively prove that he was employed in the year, 1984 and terminated in the year, 1990."
In the case of Deputy General Manager, State Bank of India this Court has held as under :
"14. The impugned award appears to have been rendered without appreciating the character of the controversy. The petitioner is a nationalised bank governed by rules of service therefore employee like the petitioner cannot be employed without any appointment letter or discharged ; without termination letter. Since, neither any appointment letter nor any termination letter was brought on record by the respondent. It is apparent from the record that workman was neither appointed in the bank nor was subjected to any wages as provided in the rules merely because the workman was getting a fixed amount of Rs.750 per month as consideration for his services. Therefore, the conclusion arrived at by the Tribunal that relationship of employer and employee exists between the petitioner and respondent No.2 appears to be illegal, arbitrary and without any basis in the facts and circumstances of the case.
15. There is also no whisper of any of the documents before the Tribunal by the parties that remuneration was being made to the workman as "pay/salary" or 9-
"wages" therefore, the interpretation ' of the Tribunal of the records that workman being paid monthly salary/wages is an erroneous interpretation. On face of record the inference made by the Tribunal appears to be against all cannons of the interpretation and the conclusion reached by it that. "it is settled position of law that oral agreement has no meaning in the eye of law unless the same is incorporated in writing between the parties." cannot be sustained also for the reason that the legal position is that when an agreement is reduced to writing no oral evidence shall be adduced in modification of it or to supplement it.
16. The workman having failed to establish his claim that he was appointed as a permanent employee of the bank and support the finding of the labour court in this regard cannot be granted relief granted to him through the impugned award."
20- In view of the law laid down in the aforesaid judgments, the respondent no.1 was required to prove that he was employed in the establishment of the petitioner for which some positive evidences were required to be produced by him, which he failed to produce.
21- In view of the foregoing discussions I find that the respondent no.1 has completely failed to prove that he was the employee of the petitioner Corporation and relationship of employer and employee existed between the petitioner and the respondent no.1. The findings recorded in the impugned award holding the respondent no.1 to be an employee of petitioner corporation is perverse. In the circumstances, the impugned award cannot be sustained.
22- Lastly, Shri Jamal Khan submits that the matter may be remanded to the Industrial Tribunal to decide the case afresh in accordance with law and liberty be granted to adduce evidence to which learned counsel for the petitioner has no objection.
23- In result, the writ petition succeeds and is hereby allowed. The impugned award dated 16.5.2013 published on 10.12.2013 passed by the Presiding Officer, Industrial Tribunal (IV), Agra in Adjudication Case No.84 of 1986 (Sri Vikram Singh v. U.P. Financial Corporation ) is hereby set aside and the matter is remanded to the respondent no.2 to decide the Adjudication Case No.84 of 1996 afresh in accordance with law, preferably within a period of six months from the date of production of a certified copy of this order.
24- The respondent no.1 as well as the petitioner shall be at liberty to lead such evidences before the respondent no.2 as may be available with them under law.
Order Date :- 5.3.2014 Ak/