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2006 Supreme(All) 368
[2006(3) ADJ 561 (All)]
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI, J.
M/s. KESARWANI SHEETALAYA, SORAON, ALLAHABAD ...Petitioner
Versus
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL(I), U.P. ALLAHABAD AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 31214 of 2004, decided on 7th February, 2006)
Counsel :
Vijai Ratan Agrawal, V.R. Agrawal and U.C. Kesarwani for the Petitioner; A.K. Sinha, S.R. Singh, D.K. Singh, Sita Ram, S.C. for the Respondents.
Headnote:Termination—Store Keeper—Tribunal directed for reinstatement in another cold storage, holding that after closing down of Cold Storage in which delinquent workman was employed, the other Cold Storage which was owned by same employer is liable to reinstate workman—High Court found that Tribunal committed illegality in holding so—Workman failed to prove that appointment letter was issued by his employer and that he worked for more than 240 days continuously in employer Cold Storage—There was no evidence even to prove relationship of master and servant between employer Cold Storage and workman—It was proved that employer Cold Storage had separate legal entity from firm in which workman was directed to be reinstated—Thus, liability for reinstatement cannot be shouldered on another firm—Tribunal committed illegality in giving such direction—High Court quashed that direction holding that burden of proof to prove his case was on workman, which he failed to discharge. [U.P. Industrial Disputes Act, 1947, Section 4-K]. [Paras 14, 15 and 18 to 22]
Hon’ble Rakesh Tiwari, J.—Heard Counsel for the parties and perused the record.
2. The petitioner has challenged the validity and correctness of the impugned award dated 19th December, 2003 passed by the Industrial Tribunal (I). U.P. Allahabad in Adjudication Case No. 88 of 1999 in the matter of Industrial dispute was between the workman and the concerns known as (i) M/s Kesarwani Sheetalaya Soraon. Allahabad and (ii) M/s. Sangam Cold Storage, Soraon, Allahabad.
3. The respondent No. 3 the workman concerned raised an industrial dispute against the aforesaid two Cold Storages claiming that he was appointed orally on 10.1.1995 on the post of Store Keeper in M/s. Sangam Cold Storage, Soraon, Allahabad. He claimed that his appointment was oral and that both the Cold Storages were run by the member of the same family. He also claimed that his services were orally terminated on 27.6.1997 by M/s Sangam Cold Storage i.e. employer No. 2.
4. The conciliation proceedings having failed the matter was referred by the Deputy Labour Commissioner, U.P. Allahabad in exercise of delegated powers under Section 4-K of the U.P. Industrial Disputes Act, 1947, for adjudication to Industrial Tribunal, Allahabad, where it was registered as Adjudication Case No. 88 of 1 999.
5. The parties filed their written statements and rejoinder statements respectively before the Tribunal in support of case. The parties also filed documentary evidence and adduced oral evidence. The workman examined himself before the Tribunal as W.W. 1. On behalf of the petitioner Suresh Chandra Kesarwani, partner gave his statement as E.W. 1. After hearing the parties, the Tribunal passed the impugned order dated 19.12.2003 said to have been enforced by publication on the notice board on 22.4 2004.
6. By the impugned award the Tribunal held that the workman was wrongfully terminated by M/s. Sangam Cold Storage and directed his reinstatement with all consequential benefits with M/s. Kesarwani Sheetalaya, the petitioner.
7. The impugned award has been assailed in the writ petition on the grounds that the findings recorded by the Tribunal against the petitioner are perverse and against the material on record. It is submitted that from the written statement filed by the workman as well as from his evidence it is admitted fact that respondent No. 3 was appointed by M/s. Sangam Cold Storage and that his services were terminated by the said establishment, hence the Tribunal has committed an illegality in granting relief of reinstatement to the workman in the petitioner’s establishment i.e. M/s. Kesarwani Sheetalaya. It is submitted that the award is wholly arbitrary and without application of mind as the two establishments were independent and owned by different members of the same family.
8. It is further submitted that admittedly M/s. Sangam Cold Storage had been closed down w.e.f. 18.6.1999 and no relief of reinstatement could have been granted to the workman concerned and at best he would have been entitled to closure compensation under Section 25-FFF of the U.P. Industrial Disputes Act, 1947 up to the date of the closure of M/s. Sangam Cold Storage.
9. It is next submitted that the petitioner M/s.. Kesarwani Sheetalaya and M/s. Sangam Cold Storage were two separate firms and distinct legal entities registered under the Factories Act as well as by Horticulture Department. U.P. Lucknow. The petitioner M/s. Kesarwani Sheetalaya was neither responsible nor liable to take over the liability of M/s. Sangam Cold Storage as the workman has failed to prove his case by filing documentary and oral evidence that he was ever appointed by petitioner M/s. Kesarwani Sheetalaya. Thus the findings of the Industrial Tribunal are illegal and deserve to be quashed.
10. The impugned award is also assailed on the ground that the findings of the Tribunal that respondent No. 3 workman had established that he had worked from 10.1.95 to 27.6.1997 with M/s. Sangam Cold Storage are perverse and is not base
