Allahabad High Court
U.P. State Warehousing Corporation & ... vs Presiding Officer & Another on 15 May, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- WRIT - C No. - 72314 of 2010 Petitioner :- U.P. State Warehousing Corporation & Another Respondent :- Presiding Officer & Another Petitioner Counsel :- Abhishek Mishra,K.N. Mishra,O.P. Singh,Y.K.Sinha Respondent Counsel :- C.S.C.,Miss Bushra Maryam Connected with Case :- WRIT - C No. - 11778 of 2012 Petitioner :- U.P.State Warehousing Corporation And Another Respondent :- Presiding Officer,Industrial Tribunal And Others Counsel for Petitioner :- K.N.Mishra,Abhishek Mishra Counsel for Respondent :- C.S.C.,P.K.Sharma,Y.K.Sinha Hon'ble Tarun Agarwala,J.
By means of this petition, the petitioners are challenging the validity and legality of the award passed by the labour court directing reinstatement with continuity of service and with full backwages. The facts leading to the filing of the writ petition is that the Union raised an industrial dispute, which was ultimately referred to the labour court for adjudication. The terms of the reference order was "whether the employers were justified in not allowing the 159 workers to work w.e.f. 25th May, 2005."
Before the labour court, the Union filed its written statement contending that its members have been working for the last 14 years in the employers' organization without any break in service and for no reason assigned, the workers were restrained from working in the petitioners' establishment. It was contended that the reason for not allowing the workers to work was the fact that the workers had raised an industrial dispute being adjudication case no. 89 of 2006 for regularization of their services, which was pending before the labour court and, on account of pendency of this adjudication case, the petitioners became annoyed, and consequently, have restrained the workers from working in the establishment. It was further contended that the actions of the petitioners was violative of Section 6-E and Section 6-F of the Industrial Disputes Act.
The petitioners filed their written statement contending that the union was not competent to espouse the dispute. It was also contended that there was no master and servant relationship between the petitioners and the workers, inasmuch as, these workers were the workers of the contractor. It was contended that the petitioners have neither engaged them nor have paid their wages, and consequently, there was no master and servant relationship between them and, therefore, the question of restraining the workers from working did not arise. It was categorically stated that the petitioners have no control over the workers of the contractors, though they admit that certain works in the petitioners' establishment was being executed through contractors.
The petitioners further submitted that it is a Government organization and that certain procedures have been framed for engagement of the workers. It was also contended that these workers had filed writ petition no. 34203 of 2004 for regularization of their services, which was dismissed by an order dated 23rd April, 2004 on the ground of alternative remedy, pursuant to which, the workers have raised an industrial dispute, which is also pending adjudication before the labour court. It was also alleged that the workers through its union had filed a writ petition no. 14877 of 2004 for issuance of Gate- pass, Identity cards etc., which was also dismissed by a judgement dated 11th January, 2005 on the ground that the workers, being workers of the contractors, are not entitled for such Gate- pass and Identity cards from the petitioners.
The union filed a rejoinder affidavit to the written statement of the employers reiterating their stand and contending that they are the workers of the petitioners and that they are not workers of the contractors. The employers did not file any rejoinder affidavit to the written statement of the Union.
On behalf of the Union, three workers deposed, namely, Ram Krishana Singh, Shiv Lal and Pappu, who all contended that they are the workers of the employers and have been working for the last 14 years and that no appointment letters were issued to them, but the wages were being paid directly by the employers. The workers also stated that the work performed by them are perennial in nature and that they have worked for more than 240 days in each calender year.
On the other hand, on behalf of the employers, Pramod Kumar Jain, Rajesh Singh and Mihi Lal deposed. These witnesses contended that certain regulations of 1962 have been framed, which governed the services of the employees working in the establishment. It was also contended that the workers in question are workers of contractors and that they are not workers of the petitioners. It was also contended that the contractors are appointed through tenders and the person who gives the lowest rates, gets the contract for a period of two years and that it is these contractors who engage the workers. It was also contended that the petitioners are only engaged in establishing the warehouse and merchants/ organization can keep their wares in their warehouse on payment of certain charges. For loading and unloading of these wares, it is upon these merchants to get the work done through their own employees or take the services of the contractors.
The union filed nine documents to support their case. The employers did not file any documents.
On the basis of the pleadings, the labour court framed two issues, namely, whether the union was competent to espouse the cause of its workers and whether the workers are employees of the contractors or whether they were appointed by the employers and had worked for 14 years before their work was stopped by the petitioners.
On the basis of the evidence led by the parties and the submissions so raised, the labour court held that the union was competent to espouse the cause of its workers. The labour court further held that on the basis of the statements of the witnesses, no contract was executed between the petitioners and the contractors and that no workers of the contractors was looking-after the loading and unloading of the articles. The labour court further found that no tender or agreement was filed by the employers before the labour court to prove their allegations nor filed any document to show that the workers was employed by the contractors. The labour court further found that the work was of a perennial nature and no proof was filed by the employer to indicate as to who was unloading or loading the wares, if the workers in question had not done the said work.
The labour court on the basis of oral and documentary evidence, held that the workers were working since 1991 continuously, and had worked for more than 240 days in each calender year and that the action of the petitioners in stopping the workers from working without assigning any reason was wholly illegal, and consequently, held that these workers were liable to be reinstated with continuity of service and with full backwages. The petitioners, being aggrieved by the said award has filed the present writ petition.
Heard Sri K.N. Mishra, the learned counsel for the petitioners and Sri Y.K. Sinha, the learned counsel for the Union.
Before this Court, the learned counsel stressed upon the fact that certain regulations have been framed under the Act, which governs the conditions of service and the engagement of employees in their establishment. The learned counsel contended that the main business of the petitioner was to establish warehouses in various parts of the State and that is open to the merchants to store their wares on payment. The petitioners provide a place and it is open to the merchants to hire the space and store their wares, for which a charge is levied by the petitioners. It was also contended that it is for the merchants to load and unload their wares and store in the warehouses at their own expenses. However, in order to give them some facilities, the petitioners have issued tenders and contracts have been executed and through these contractors, certain workers are engaged by these merchants for loading and unloading of their wares and for stacking it inside the warehouses. The learned counsel contended and placed the tender notice and the contract that was executed between the parties to support his stand. The learned counsel contended that there was no master and servant relationship nor there was an iota of proof before the labour court that these workers were paid wages directly by the petitioners nor any evidence was led to prove that they had worked for more than 240 days in a calender year.
In support of their submissions, the learned counsel placed reliance upon the various judgements, namely, Panki Thermal Station and another Vs. Vidyut Mazdoor Sangthan and others 2009, (121) FLR 173, Sunflag Iron and Steel Co. Ltd., Nagpur Vs. State of Maharashtra and others 2009 (120) FLR 559, General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and Another 2010 AIR SCW 7312, R.V. General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and another, 2011 (128) FLR 560, Birdhichand Sharma Vs. First Civil Judge, Nagpur 1961 AIR SC 644, Silver Jubilee Tailoring House Vs. Chief Inspector of Shops and Establishment 1974 AIR (SC) 37, P.M. Patel and Sons Vs. Union of India 1987 AIR SC 447, R.M. Yellatti Vs. Assistant Executive Engineer 2006 (108) FLR 213 and Workmen of Nilgiri Co-operative Marketing Society Ltd. Vs. State of Tamil Nadu and other, 2004 (101) FLR 137, some of which are relevant to the issues and which would be referred hereinafter.
On behalf of the union, Sri Y. K. Sinha, contended that the workers of the union were engaged by the petitioners and, it is irrelevant as to whether they were issued an appointment letter or not. It was contended that the workers were working in the petitioners' establishment for the last 14 years without any break in service and had completed 240 days in each calender year. It was contended that the workman had raised an industrial dispute for the regularization of their services, which was referred to the labour court for adjudication.
Being aggrieved by the action of the workers, the employer took a step of not allowing the workers to work in their establishment. The action of the petitioners virtually terminated the services of the members of the union without assigning any reason, and consequently, a second dispute was referred for adjudication. In support of his submission, the learned counsel placed reliance upon various judgements, namely, Dharangadhra Chemical Works Ltd. Vs. State of Sauashtra 1957 AIR SC 264, J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. Labour Appellate Tribunal of India, Iiird Branch, Lucknow: Badri Mali, 1964 AIR SC 737, Silver Jubilee Tailoring House and others Vs. Chief Inspector of Shops and Establishment and another 1974 AIR SC 37, M/s. Basti Sugar Mills Ltd. Vs. Ram Ujagar and others 1963 (7) FLR 253, Indian Explosive Ltd. Vs. State of U.P. and others 1980 (410) FLR 407, Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma Dead By Lrs. & Ors. 2011 AIR SC 3546 and General Manager, ONGC, Shilchar Vs. O.N.G.C. Contractual Workers Union 2008 (118) FLR 942, Steel Authority of India Ltd. And others Vs. National Union Waterfront Workers and others 2001 (7) SCC 1 and Air India Authority Corporation and others Vs. United Labour Union and others 1997 (9) SCC 377.
It is clear that two different stands have been taken by the parties. The learned counsel for the union contended that its members are the employees of the petitioners and that they have been working in their establishment for 14 years without any break in service and that they have completed 240 days in each calender year. The workers have further contended that they were paid the wages from the employers.
On the other hand the petitioners contended that the members of the union are not their workers and that there is no master and servant relationship. These workers are the workers of the contractors, who pay them the wages and that the petitioners have no direct control over them.
Both the parties were required to prove their allegations.
In the instant case, the Court finds that the petitioners have miserably failed to prove their case. They made a bald assertion that under the Act that they are only required to maintain a warehouse and that it was for the merchants to stock their goods through their own workers or use the services of the workers of the contractors for loading and unloading. It was also contended that the tenders were issued and the persons giving the lowest rates were given a contract for two years. Neither any tender notice nor contract with regard to engagement of the contractors have been spelt out in detail before the labour court. Such contentions have been made in the writ petition which cannot be considered in a writ jurisdiction. The petitioners cannot file any document before the writ court, which was not part of the record of the labour court. The Court finds that the petitioner has tried to make out their case on the basis of the judgement given by the Supreme Court in Workmen of Nilgiri Co-operative Marketing Society Ltd. And State of Tamil Nadu and other, 2004 (101) FLR 137. The Court is of the opinion that the labour court was justified in holding that on the basis of the evidence of the employers, they have miserably failed to prove their case, namely, that the workers in question were engaged by the contractors.
It is settled law that the person who files a claim is required to prove his case. The Industrial dispute was raised at the instance of the union, and even though, the provisions of the Evidence Act is not applicable in industrial proceedings, nonetheless, the burden of proof is upon the union and its workers to prove their claim before the labour court.
In the instant case, the stand of the union is that its members are employed by the petitioners and that they are being paid the wages through them and that there is a master and servant relationship. Further, they have worked for more than 240 days in each calender year for 14 years. These facts are required to be proved by oral as well as documentary evidence, and only then, the burden is discharged and the onus shifts upon the employers.
In order to support their stand, three workers out of 159 deposed contending that they have worked for 14 years without any break in service and they were paid wages by the petitioners and not by the contractors. This statement by itself does not discharge their burden. Something more was required to be proved through documentary evidence and, in support of their case, certain documents were filed. It is essential for this Court to refer to these documents as ultimately these documents would have a bearing to the ultimate result of the case.
E.W.-1 relates to proceedings dated 21st December, 2007 before Addl. Labour Commissioner, Bareilly indicating that for loading and unloading. Sri Mihi Lal, Manager of the petitioners would look-after the matter and supervise the work. E.W.-2 relates to the proceedings dated 25.10.2004 before the Conciliation Officer on an application filed by the union under Section 6-E of the Act, in which the Conciliation Officer while closing the proceedings requested the management not to change the conditions of service of the workers during the pendency of the dispute. These proceedings also indicate the stand of the employers, wherein they have denied any master and servant relationship. E.W.-3 is a certificate given by the Deputy Labour Commissioner dated 23.12.2005 indicating therein that the petitioners are not registered under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 as well as certificate dated 2nd January, 2006 indicating that the contractors were also not registered under the said Act. E.W.-4 is a photocopy of register indicating names of certain workers employed for loading and unloading of the wares being brought into the warehouse. E.W.-5 is an application and information given under the Right to Information Act. E.W.-6 is a covering letter of the employers of Provident Fund Organization annexing list of the workers of Anshul Enterprises. E.W.-7 discloses payment vouchers paid to some of the workers for handling grain and for loading and unloading of the wares, E.W.-8 and E.W.- 9 are certain informations provided under the Right to Information Act.
In the light of the documentary evidence, one thing, which comes out clearly is, that the petitioner nor its contractor is registered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, but this fact does not prove that the workers of the union are the deemed to be the workers of the petitioners. The vouchers E-4 and E-7 does not indicate that the payments are being paid by the petitioners to all the workers in question for the last 14 years. These vouchers do not establish that they are being paid wages on a monthly basis nor does these documents indicate that the workers have worked for more than 240 days in a calender year. All the nine documents filed by the union does not indicate that its members have worked continuously for 14 years. The Court is of the opinion that the Union has miserably failed to prove its case, namely, that they have been working since 1991 and that they were appointed or engaged directly by the petitioners nor they have been able to prove that its members have worked for more than 240 days in a calender year or that they had been paid the wages by the petitioners.
In the light of the aforesaid, the Court is of the opinion that the Union could not substantiate their claim. They did not discharge their burden and the onus could not shift upon the employers. In the instant case, the Court finds that the entire burden was placed by the labour court upon the employers, which is against the settled principle of law.
In General Manager (Osd), Bengal Nagpur Cotton Mills Rajnandgaon Vs. Bharat Lal, 2010 AIR SCW 7312, 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 2006 (108) FLR 213, 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, AIR 2005 SC 2179, 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.
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.
The writ petition is allowed.
In the circumstances of the case, the parties shall bear their own cost.
Pursuant to the interim order, certain amounts were deposited by the petitioners before the labour court. Since the writ petition is allowed, it would be open to the petitioners to move an application before the labour court for refund of the amount along with the interest accrued thereon. If such an application is filed, necessary orders for refund shall be passed by the labour court.
Connected writ petition no. 11778 of 2012 has been filed against the award of the labour court directing regularization of their service. In writ petition no. 72314 of 2010, this Court has held that the workers in question have not been able to prove any master and servant relationship between the members of the union and the petitioner and have proved that they had worked 240 days in a calender year.
In the light of the aforesaid, the award of the labour court directing regularization of their services is patently erroneous and cannot be sustained. The award of the labour court is quashed.
The writ petition is allowed.
Order Date :- 15.5.2013 Sanjeev (Tarun Agarwala,J.)