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2012 Supreme(All) 2913
[2013(2) ADJ 649]
ALLAHABAD HIGH COURT
BEFORE : MRS. SUNITA AGARWAL, J.
CHITRAKOOT DHAM MANDAL JAL SANSTHAN, KARVI, BANDA AND ANOTHER ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 19020, 28954 and 37053 of 2004, decided on 2nd November, 2012)
Counsel :
R.M. Saggi, Ghanshyam Dwivedi, R.K. Tripathi, G.S. Dwivedi and Sanjay Kumar Srivastava for the Petitioners; C.S.C., A.K. Mishra, Dilip Chandra Mishra, Jamal Ali, P.S. Baghel, Shiv Kumar Singh, Shree Ram Gupta, Dr. S.K. Yadav, Suman Kumar Yadav and Abha Gupta for the Respondents.
Headnote:U.P. Industrial Disputes Act, 1947—Sections 4-K, 2(l), 2(z) and 6-N—U.P. Water Supply and Sewerage Act, 1975—Sections 27 and 27-A—Termination—Reinstatement—Non-payment of salary—Denial of status of workman by employer—No master servant relationship—Work is taken through contractors as a stop-gap arrangement—Labour Court holding that employees failed to establish that workmen were engaged through contractor—However, stattement of a workmen that they had worked more than 240 days remain unrebutted—Burden of proof lies upon party who asserts the same—As employer asserted that respondents were not their employees—They failed to discharge burden—Labour Court justified in drawing adverse reference against employees—Labour Court rightly held that respondents were workmen of petitioner employer—No interference in findings of fact recorded by Labour Court—However, burden of proof that they worked for more than 240 days in a calendar year—In order to establish violation of Section 6-N rests upon workmen—Alteration made by workmen never denied nor replied by employer—This point not raised before Labour Court—And no ground taken in W.P.—Order of Labour Court for reinstatement on regular posts with regular pay-scale, not sustainable—Admittedly, respondents were not engaged against sanctioned posts through prescribed under Act/Rules—Award modified. [Paras 6, 7, 9, 11 to 22]
Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Ghanshyam Dwivedi, learned counsel for the Chitrakoot Dham Division Jal Sansthan, Sri S.K. Srivastava and Sri Shree Ram Gupta, learned counsels for the workmen and the learned Standing Counsel.
2. The above mentioned three petitions have same set of facts though two awards of different dates are under challenge. The impugned award dated 12.12.2003 in writ petition No. 28954 of 2004 and award dated 6.11.2003 in writ petition No. 19020 of 2004 are against the petitioners Chitrakoot Dham Mandal Jal Sansthan, Karvi, Banda. The writ petition No. 37053 of 2004 has been filed by Ram Ratan, who is respondent No. 3 in Writ Petition No. 28954 of 2004, challenging operation of the award to the extent of non-payment of the salary w.e.f. 1.10.1994 to 12.5.1997. Three petitions raise common question of law and have been heard together and are being disposed of by a common judgment.
3. The facts and circumstances given by the petitioner are that respondents-workmen raised an industrial dispute and two references were made as to whether the termination of service of workmen w.e.f. 1.10.1994 is valid and legal. In so far as Writ Petition No. 28954 of 2004 is concerned, the conciliation proceedings were initiated by the Respondent No. 3 Ram Ratan and the application was moved in the Year 1996 and the case was registered as Conciliation Application No. D-63-96. vide order dated 9.1.1997, the delay in filing conciliation application was condoned by the Deputy Labour Commissioner, Jhansi Region, Jhansi. The above conciliation having been failed, reference was made under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’) and the same was registered as Adjudication Case No. 118 of 1997. The award was made on 12.12.2003 and published on 24.4.2004.
4. In so far as the Writ Petition No. 19020 of 2004 is concerned, the references with regard to the Respondents- workmen was made by the State Government for adjudication and the same were registered as Adjudication Case Nos. 117/1997, 124/1997, 125/1997, 129/1997 and 136/97. Award in respect of the references made in Adjudication Cases mentioned above was declared by a common order passed on 6.11.2003 and published on the notice board on 13.1.2004. The reference as made by the State Government for adjudication to the labour Court was as to whether the termination of the services of the respondents- workmen w.e.f. 1.10.1994 was in accordance with law and if not to what relief/damages they are entitled to.
5. The workmen in pursuance of the reference made in their individual cases, filed through written statements separately and pleaded that they were appointed against the regular vacancies of Pump-Operators/Pump-Helpers/Beldars on various dates between 1989 to 1992. They were working regularly on the post on which they were appointed and there had been no complaint against them. There was some demand with regard to payment of salary raised by the respondents-workmen from the employer and as such they got annoyed and removed the respondents-workmen w.e.f. 1.10.1994 without any notice. They contended that they have worked for 240 days in one calendar year. While removing the services of workmen, the employer had not followed the provisions of the Act and their removal amounts to retrenchment. They are entitled for reinstatement with continuity of service and full back wages.
6. The employers in their written statements came out with the case that the respondents are not the workmen. There is no master-servant relationship between them. They were engaged through contractors and had never been in direct employment of the petitioner namely Chitrakoot Dham Mandal Jal Sansthan, Karvi, Banda as such the dispute raised is not an industrial dispute within the meaning of Section 2 (1) of the Act and the persons concerned are not the workmen within the meaning of Section 2(z) of the Act. It was further pleaded that the contracto
