Allahabad High Court
The G.M. Bharat Sanchar Nigam Limited ... vs State Of U.P. And Another on 28 July, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - C No. - 34057 of 2016 Petitioner :- The G.M. Bharat Sanchar Nigam Limited And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- B.K.Singh Raghuvanshi Counsel for Respondent :- C.S.C.,Ramgee Prasad,Virendra Kumar Kori Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri B.K. Singh Raghuvanshi, learned counsel for the petitioners and Shri Virendra Kumar Kori, learned counsel for respondent workman.
2. Present writ petition has been filed against the award of the Labour Court, Agra, dated 22.12.2015 in Adjudication Case No. 134 of 2004 between the petitioner and the respondent workman Mukesh Kumar.
3. Earlier, the following dispute had referred to the Labour Court vide reference order dated 27.05.2004 under Section 4-K of the U.P. Industrial Disputes Act, 1948 (hereinafter referred to as the State Act):
"Kya Sewayojakon Dwara Apne Shramik Shri Mukesh Kumar Putra Shri Om Bhagwan Dubey (Lineman) Ki Sevayein Dinaank 25.06.2003 Se Samaampt Kiya Jaana Ucchit/Tatha Athva Vaidhanik Hai? Yadi Nahin, Toh Sambhandhit Shramik Kya Laabh/Relief Paane Ka Adhikari Hai Tatha Anya Kis Vivaran Ke Saath?"
4. The Labour Court has made the award in favour of the respondent workman. It granted relief of reinstatement with full back-wages. The operation and effect of the award has remained stayed under interim order of this Court dated 26.07.2016.
5. Learned counsel for the petitioner has raised two submissions. First, it has been submitted, the reference order was void ab initio, inasmuch as, Bharat Sanchar Nigam Limited (B.S.N.L.) is an industry carried out under the authority of the Union Government of India. Therefore, by virtue of Section 2(a) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act), the appropriate government that may have made the reference was the Central Government only. That objection is stated to have been raised before the Labour Court but the same was not properly dealt with.
6. Second, it has been submitted, there was no master servant relationship between the petitioner and the respondent workman. All documents procured by the respondent workman were manufactured for the purposes of supporting the false claim raised by him. The telephone exchange at Etmadpur where the respondent workman claimed to have been employed was a rural exchange. Documents and register entries were manufactured in connivance with certain employees of the petitioner. The respondent workman did not lead any evidence to establish either issuance of any appointment letter or payment of salary or other dues to the said respondent, by the present petitioner.
7. In fact, there was absolutely no evidence to reach the conclusion that the respondent workman ever enjoyed the status of a permanent workman. Merely because certain documents may not have been produced by the petitioner before the Labour Court, it did not lead to the conclusion that there existed master servant relationship between the parties.
8. On the other hand, learned counsel for the respondent workman has submitted, there was no jurisdictional error committed by the State Government in making the reference. A technical defect that may have existed in that order may not defeat the ends of justice. He relied on the decision of the learned single judge of this Court in M/s Triloki Nath & Sons Vs. Chhedi Lal & Ors., 1997 (75) FLR 393. He has further relied on the another decision of this Court in Parvez Ahmad Vs. P.O., Labour Court, Allahabad & Ors., 1997 (75) FLR 85. Last, reference has been made to another decision of this Court in M/s Sunray Auto Glass Pvt. Ltd. Vs. State of U.P. & Ors., Writ - C No. 8089 of 2021, decided on 24.09.2021, to submit, respondent workman would be entitled to lump-sum compensation.
9. Having heard learned counsel for the parties and having perused the record, in the first place, no doubt, the reference may be made by the "appropriate government". That issue has to be dealt with and decided keeping in mind the statutory definition of "appropriate government" provided under Section 2(a) of the Central Act. However, whether an industry is carried on by or under the authority of the Central Government would not be decided solely on the strength of the share holding pattern of the employer corporation. That view has been taken in Parvez Ahmad (supra), relying on a decision of the Supreme Court in Heavy Engineering Mazdoor Union Vs. State of Bihar, 1969(19) FLR 27 (SC).
10. The matter may not engage us any further as the pleading made in the writ petition, in that regard, are wholly inadequate and deficient. The only pleading made in that regard is contained in parargraph-3 of the writ petition. It reads as below:
"That the petitioner Bharat Sanchar Nigam Limited is undertaking of the Government of India and regulates the services of its employee as per norms/circular/Central Government order/Departmental order and as per rules and has no right to appoint/engaged to any one without following the existing rules/Government order either in the regular capacity or in temporary engagement."
11. Even if the pleadings made in the writ petition are accepted as true and correct, it cannot lead to the conclusion that the petitioner is an industry falling under the control of the Central Government. No pleading has been made and no document has been shown to exist as may establish the nature and extent of control of the Central Government over the petitioner. No disclosure has been made to the exact nature of activities in which the petitioner may have been involved as may allow the Court to reach any conclusion in favour of the petitioner.
12. In such uncertain facts, it would be dangerous to reverse the award and seek fresh adjudication, upon reference to be made by the Central Government. In face of industrial dispute that is otherwise seen to exist between the parties, the above course does not commend to the Court. Therefore, leaving that issue open to be adjudicated in an appropriate case where proper pleadings and evidence may be raised by the petitioner, at present, it is observed, the petitioner has not been able to establish that the reference order dated 27.05.2004 made by the State Government in exercise of its powers under Section 4-K of the State Act was without jurisdiction. Accordingly, the impugned award is not found to suffer from any patent lack of jurisdiction.
13. On merits, it is seen, the petitioner establishment had seriously disputed existence of master servant relationship. Here, the petitioner had taken a clear stand that it had never engaged the respondent workman on any post or on any terms offered by it. On its part, the respondent workman could not lead any evidence, either in the shape of appointment letter issued by the petitioner or payment of salary by the petitioner or order of posting on any particular post or any other document to establish creation of master servant relationship.
14. In fact, the respondent workman relied on secondary evidence in the nature of identity card, copy of attendance register, copy of complaint logbook of the telephone exchange at Etmadpur. In addition, during the course of his oral evidence, the respondent workman had clearly stated, he had worked continuously at the petitioner establishment from 01.07.1999 to 25.06.2003 i.e. for a period of roughly four years.
15. In addition, the respondent workman had moved an application 12-Da for production of attendance register, maintenance register, complaint register and daak register, by the petitioner to establish the continuous nature of work performed by him. The petitioner could not establish that the respondent had never worked at the petitioner establishment. Thus, an inescapable conclusion that may be drawn in such circumstances is - the respondent workman had worked at the petitioner establishment from 01.07.1999 to 25.06.2003.
16. In absence of any evidence in rebuttal and in view of the failure on the part of the petitioner to produce documents pertaining to attendance record etc., an adverse inference could have been drawn as to work done by the respondent workman for more than 240 days in one calendar year, preceding his disengagement. Though, that conclusion and adverse inference had not been specifically drawn by the Labour Court, at the same time, upon perusal of the entire record and the award, it does appear, in sum and substance, the Labour Court has reached that conclusion.
17. Consequently, the finding of the Labour Court, though not happily worded, amounts to acknowledgment that the respondent workman had worked for 240 days in one calendar year before his disengagement. However, even that finding may not have led to the grant of relief of reinstatement with full backwages. To grant that relief in the context of the petitioner establishment which undoubtedly is a Government of India Corporation, would be to assume the status of a permanent employee contrary to commonly known practices in Government Corporations.
18. Thus, in absence of any appointment letter and further in complete absence of plea set up by the respondent workman that he was engaged against any application for appointment on any particular post and further in face of inherent contradiction offered in the evidence of the respondent workman, inasmuch as, he first claimed to have been appointed as a Security Guard, in support of which he produced his identity card and, later in his oral evidence, claimed to have worked as a Lineman, it clearly appears, the engagement of the respondent workman was of a simple daily wage employee.
19. Neither any salary payment was proven or attempted to be proven by demand for production of documents from the petitioner nor any other evidence was led to establish existence of master servant relationship of the nature as may have involved the permanent status of the respondent-workman.
20. The documents demanded by the respondent workman vide his application No. 12-Da were not such as may have proven the status of the respondent workman to be a permanent employee, had those documents been produced by the petitioner. Thus, attendance register, maintenance register, complaint register and daak register would have only gone to establish that some work had been performed by the respondent workman at the petitioner establishment over a sustained period of time. However, by very nature of diverse duties performed that would be reflected upon production of such documents would indicate that the respondent workman was not enjoying permanent status at any particular post. Typically, such diverse engagements may be offered to casual employees engaged on daily wage basis.
21. Therefore, the Labour Court has erred in awarding the relief of reinstatement with full back-wages to the respondent workman which may have been done only in the case of status being found to be that of permanent employee. It is so because the terms of reference would not have permitted a larger enquiry or a more pervasive finding in that regard.
22. Accordingly, the respondent workman was entitled to receive lump-sump compensation for sudden disengagement after having worked for 240 days in one calendar year prior to his disengagement that too when the respondent workman had worked for four years in continuation.
23. As to compensation, in the decision relied upon by learned counsel for the respondent workman - M/s Sunray Auto Glass Pvt. Ltd. (supra), compensation Rs. 3,00,000/- was awarded to the workman (in that case) where the employee was found to have worked for a long period of time from 1989 to 1998.That is not the case here.
24. In view of the above, the award of the Labour Court is modified to the extent, in place of relief of reinstatement with full back-wages, the respondent workman is held entitled to receive lump-sum compensation of Rs. 1,50,000/-.
25. Accordingly, present petition stands partly allowed.
Order Date :- 28.7.2022 Prakhar