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Judgment
B. Amit Sthalekar, J.—By this writ petition, the petitioner is challenging the award of the Labour Court dated 3.5.1999 with a further relief that the order of reference dated 14.6.1994 and its amendment dated 25.7.1996 had not given effect to. The facts of the case, in brief, are that the petitioner is a partnership firm engaged in the business of running a Cold Storage and Ice Factory at Sahson, Allahabad. On a dispute being raised by the respondent No. 3 a reference dated 14.6.1994 was referred to the Industrial Tribunal U.P. Allahabad. Thereafter, after about 2 years an amended reference was made on 25.7.1996, which was also referred for adjudication by the Labour Court, Allahabad. The reference was registered as adjudication case No. 73 of 1994.
The case of the respondent No. 3- was that he was appointed under the petitioner-Cold Storage on 17.7.1990 on the post of Clerk and his services were wrongfully terminated by an order on 26.10.1993. The petitioner-Ice Factory denied the allegations made by the workman and stated that the respondent No. 3- Shailendra Kumar Kushwaha was never employed by the petitioner and, therefore, the question of terminating his services w.e.f. 26.10.1993 did not arise. It was stated that the respondent No. 3 was an employee of a Brick Kiln adjacent to the petitioner-Cold Storage whose proprietor was one Surya Prakash Kesarwani, who also happened to be a partner of the petitioner-Cold Storage.
The case of the petitioner is that on 8.4.1993 an application was filed by the respondent No. 3 before the Dy. Labour Commissioner, Allahabad-respondent No. 2 claiming that he was employed by the petitioner on 17.7.1990 and that his services were illegally terminated on 26.10.1993. Conciliation proceedings were initiated and notice was issued to the petitioner-Cold Storage who submitted its reply/objections on 24.1.1994 before the Dy. Labour Commissioner in conciliation proceedings being case No. 333 of 1993. In those proceedings the respondent No. 3 filed a rejoinder dated 4.2.1994, filed as Annexure-6 to the writ petition, in paragraph 17 of which he denied that he had ever worked in the Brick Kiln of Surya Prakash Kesarwani. The Dy. Labour Commissioner without summoning the proprietor of the Brick Kiln, namely, Shri Surya Prakash Kesarwani held conciliation proceedings and referred the dispute regarding the validity of the alleged termination of the services of the respondent No. 3 by the petitioner for adjudication to the Industrial Tribunal (I), Allahabad which was registered as Adjudication Case No. 73 of 1994.
Before the Tribunal the respondent No. 3 filed his written statement dated 5.10.1994 in which he reiterated his stand taken before the conciliation officer and further added that he had made a complaint about his alleged termination by the petitioner to the Dy. Labour Commissioner, Allahabad as well as the police station Sarai Inayat, Allahabad. To the written statement of respondent No. 3, the petitioner filed a reply dated 3.5.1995 denying that the respondent No. 3 had ever worked under the petitioner. It was also denied that the petitioner had no knowledge of any complaint made to the police station. However, during this period the Dy. Labour Commissioner by his order dated 25.7.1996 after the expiry of more than 2 years amended the original order of reference dated 14.5.1994 and added M/s. Surya Prakash Kesarwani, Brick Kiln, Sahson, Allahabad as employer No. 2 in the original order of reference.
On the addition of M/s. Surya Prakash Kesarwani as employer No. 2, the respondent No. 3 filed an additional written statement dated 28.10.1996. In this additional written statement, the respondent No. 3 changed his stand and now for the first time admitted that he was employed under M/s. Surya Prakash Kesarwani till 16.7.1990 and from 17.7.1990 he started working in the petitioner-Cold Storage under the order of Surya Prakash Kesarwani. On behalf of M/s. Surya Prakash Kesarwani, a reply dated 11.2.1998 was filed wherein it was stated that the Brick Kiln was functional till the date of its closure on 16.11.1991. It was further stated that after the closure of the Brick Kiln on 16.11.1991, the respondent No. 3 was retained in service for selling the remaining bricks and he worked as such till 20.10.1993 and since then he is absenting himself from duty. The employer No. 2 Brick Kiln owner has categorically submitted that the services of the respondent No. 3 were never terminated w.e.f. 26.10.1993 or from any other date. It was further stated that Surya Prakash Kesarwani was the sole proprietor of M/s. Surya Prakash Kesarwani Brick Kiln, Sahson Allahabad whereas Shri Kailash Chand Kesarwani and Shri Vishwanath Kesarwani are partners of Kesarwani Sheetalaya & Ice Factory, Sahson Allahabad. The two are different establishments altogether and there is no functional integrity between the two. The two establishments were separately registered under the separate Acts. The respondent No. 3 was working under the employer No. 2, namely, M/s. Surya Prakash Kesarwani throughout till he started remaining absent from 20.10.1993.
The Tribunal, however, ignoring the specific pleadings of the petitioner as well as that of M/s. Surya Prakash Kesarwani, has by the impugned award dated 3.5.1999 held that the respondent No. 3 was a workman under the petitioner-Cold Storage and that his services had been illegally terminated without complying with the provisions of section 6-N of the U.P. Industrial Disputes Act terminated and, therefore, directed that the respondent No. 3 be reinstated in service within one month from the date of publication of the award and he shall also be entitled to receive full back wages from the date of his retrenchment till the date of his reinstatement and shall also continue in service with continuity of service and will be entitled to all the benefits under the U.P. Industrial Disputes Act and other Acts governing the industrial establishments in the State. The Tribunal has also awarded cost of Rs. 5000/- to the respondent No. 3 to be paid by the employer.
I have heard Shri Vijay Ratan Agarwal, learned Senior Counsel assisted by Shri Umesh Chand Kesarwani, for the petitioner and Shri A.K. Sinha, learned Counsel appearing for the respondent No. 3 and the Addl. Chief Standing Counsel, appearing for the respondent Nos. 1 and 2.
It was submitted by Shri V.R. Agarwal, learned Senior Counsel that in paragraph 8 of the written statement dated 24.1.1994 filed before the Dy. Labour Commissioner in the conciliation proceedings, the petitioner-Cold Storage has categorically stated that the respondent No. 3 had never been employed by the petitioner nor was he being paid salary by the Cold Storage and therefore, the question of terminating his services on 26.10.1993 did not arise. On the other hand, he was working in the Brick Kiln owned and run by Shri Surya Prakash Kesarwani which was adjacent to the Cold Storage.
The learned Senior Counsel further submitted that before the conciliation proceedings, the respondent No. 3 in his written statement had categorically stated that he was working in the petitioner-Cold Storage from 17.7.1990 but after amendment of the reference when M/s. Surya Prakash Kesarwani, Brick Kiln, Sahson Allahabad was added as employer No. 2 and filed its reply stating that the respondent No. 3 was working in the Brick Kiln from 1987 till the closure of the Brick Kiln upto 16.11.1991 and after 16.11.1991 he was retained in service for selling the remaining bricks and he worked till 20.10.1993 and thereafter he absented himself from duty, the respondent No. 3 suddenly changed his stand and in his subsequent written statement filed before the Industrial Tribunal dated 28.10.1996 filed as Annexure-10 to the writ petition admitted that till 16.7.1990 he was working in M/s. Surya Prakash Kesarwani, Brick Kiln and from 17.7.1990 he started working in the petitioner-Cold Storage under the orders of Shri Surya Prakash Kesarwani, since the management of both the establishments was the same.
The learned Senior Counsel further submitted that in the written statement filed on behalf of M/s. Surya Prakash Kesarwani dated 11.2.1998, filed as Annexure-11 to the writ petition, their specific case was that the respondent No. 3 worked in the Brick Kiln till its closure on 16.11.1991 and thereafter was retained in service for selling the remaining bricks and he worked till 20.10.1993 and ever since he has been absenting himself from duty. It was further stated that M/s. Surya Prakash Kesarwani had never terminated the services of the respondent No. 3 with effect from 10.10.1993 or from any other date.
Attention of the Court was also drawn to the specific averment in this written statement of M/s. Surya Prakash Kesarwani dated 11.2.1998 that Surya Prakash Kesarwani is the sole proprietor of M/s. Surya Prakash Kesarwani Brick Kiln, Sanson Allahabad whereas Shri Kailash Chand Kesarwani and Shri Vishwanath Kesarwani are partners of M/s. Kesarwani Sheetalaya & Ice Factory, Sanson Allahabad. The two are different establishments altogether and there is no functional integrity between the two. The two establishments were separately registered under the separate Acts.
In rebuttal the submission of Shri A.K. Sinha, learned Counsel for the respondent No. 3-workman was that the respondent No. 3-workman worked under the petitioner-Cold Storage from the date of his appointment on 17.7.1990 on the post of clerk and he continued to work as such till his services were terminated by an oral order on 26.10.1993. When this Court pointed out to him that in the written statement of M/s. Surya Prakash Kesarwani, Brick Kiln it was stated that the respondent No. 3 worked in the Brick Kiln upto its closure on 16.11.1991 and thereafter he continued to be retained in service of the Brick Kiln for the purposes of selling the remaining bricks and he worked as such till 20.10.1993, then how could he be working in both the establishments at the same time, Shri Sinha submitted that since both the establishments were under the common management, therefore, the respondent No. 3 was actually working in the petitioner-Cold Storage from the date of his appointment on 17.7.1990 and worked in the Brick Kiln only in the evening after completing duty hours in the Cold Storage.
This submission does not appear to be convincing inasmuch as in the written statement dated 11,2.1998 of M/s. Surya Prakash Kesarwani, Brick Kiln there is specific averment in paragraph 11 that Surya Prakash Kesarwani is the sole proprietor of M/s. Surya Prakash Kesarwani, Brick Kiln, Sanson, Allahabad whereas Shri Kailash Chand Kesarwani and Shri Vishwanath Kesarwani are partners of Kesarwani Sheetalaya & Ice Factory, Sahson Allahabad. It is also stated that the two are different establishments altogether having no functional integrity and are separately registered under various Act. These two establishments are adjacent to each other and, therefore, the respondent No. 3 may have put his signature on some documents of the employer No. 1, namely, Petitioner-Cold Storage unauthorizedly. It has also been averred in paragraph 9 of the said written statement that the respondent No. 3 worked in the Brick Kiln after its closure on 16.11.1991 till 20.10.1993 and thereafter he absented himself from work.
It is also notable that in his rejoinder dated 4.2.1994 filed in the conciliation proceedings case No. 333 of 1993, in paragraph 17, the respondent No. 3 had completely denied ever having worked in the Brick Kiln.
This Court by its order dated 21.4.2003 had also directed the original records of the Industrial Tribunal of adjudication case No. 73 of 1994 be produced showing the hand writing of the respondent No. 3 and also the attendance register from April, 1993 to March, 1994. The original documents have been produced by the learned Addl. Chief Standing Counsel and from perusal of the each sheet of attendance register it will be seen that the name of respondent No. 3 does not find mention anywhere. The copies of the pages of the Ledger Book of payment of Rs. 3000/- to various persons also does not no where mentioned the name of the respondent No. 3- Shailendra Kumar Kushwaha. Ext. E-7 is also copy of the Ledger Book which does not show the name of the respondent No. 3-workman. There is an extract of some account sheet of one Ram Lal and another account sheet is of Ram Singh. Another document is under the name/signature of Praveen Kesarwani. The next account sheet is of one Champa Bai. There is a receipt of Rs. 1350/- in the name of one Shri Satish Kesarwani. The other receipts in the same exhibit are in the name of one Raja Ram. In the attendance sheet from December, 1987 to July, 1988 also the name of the respondent No. 3 does not find mention. Then there is a stock report of Fertilizer, Wood, Potato, Tobacco etc. which does not bear anybody''s name. On one sheet at page 74 of the original record there is a signature of Praveen Kesarwani mentioning "paid". At one place of the stock report at page 81, 85, 86 dated 19.6.1993 only Shailendra Kumar is mentioned. At page 89 also mere is signature of Shailendra Kumar dated 20.6.1993. At page 90 dated 1.8.1993 it is mentioned Shailendra Kumar. Again the documents dated 12.8.1993 and 16.9.1993 also bear the name of Shailendra Kumar. Thereafter on 3.10.1993 there is name of one Brij Lal. On 14.10.1993 the name of Shailendra Kumar is mentioned.
However, merely because in some isolated pieces of paper the name of Shailendra Kumar is mentioned it would not be sufficient for this Court to draw an inference that it necessarily referred to the respondent No. 3-Shailendra Kumar Kushwaha, the reason being that in his cross-examination sheet of M/s. Surya Prakash Kesarwani, the respondent No. 3 has signed his full name as Shailendra Kumar Kushwaha in Hindi at five places.
Shri A.K. Sinha further submitted that in the proceedings being case No. 101 of 1993 (Badri Prasad Yadav v. M/s. Kesarwani Sheetalaya & Ice Factory), under the Minimum Wages Act, the respondent No. 3 was also one of the applicants and the Prescribed Authority under the Minimum Wages Act has held that the respondent No. 3 was entitled to difference of wages of Rs. 3,698.72/- plus compensation of equivalent amount. However, Shri V.R. Agrawal, learned Senior Counsel immediately pointed out that in the said order of the Prescribed Authority, Minimum Wages Act, has noted that a Court of competent jurisdiction namely referring to the adjudication proceedings before the Labour Court, the Labour Court had given an award holding respondent No. 3 to be a workman of M/s. Kesarwani Sheetalaya & Ice Factory. Shri V.R. Agarwal further submitted that since the amount awarded by way of difference of wages and compensation was too meagre, therefore, the owner of the Ice Factory had not deemed it proper to challenge the same in a higher forum but that in itself does not lead to a presumption that the petitioner-Cold Storage had admitted the respondent No. 3 to be its workman.
From a perusal of the award dated 3.5.1999 of the Labour Court it will be seen that the Labour Court has at two different places held that the respondent No. 3 had worked in the Brick Kiln upto 16.11.1991 and that thereafter he had been absenting himself. This is factually incorrect inasmuch as in its written statement dated 11.2.1998 M/s. Surya Prakash Kesarwani, Brick Kiln has come out with clear averments in paragraphs 5 and 11 thereof that the Brick Kiln had closed on 16.11.1991 but the respondent No. had continued to be retained in service in order to dispose of the remaining bricks and that he continued to work as such till 20.10.1993 but after that he himself remained absent from work and the Brick Kiln had never terminated his services.
The Labour Court has also not stated anywhere as to what were the working hours of the petitioner-Cold Storage and, therefore, on a mere averment of the respondent No. 3 it cannot be accepted that after the duty hours of the Cold Storage he worked in the Brick Kiln. Before the Labour Court, the respondent No. 3 has neither filed any copy of the delivery challan nor Gate Pass issued in his hand writing but he only submitted an application requiring the petitioner-Cold Storage to produce those document. Obviously, when the stand of the Cold Storage categorically was that the respondent No. 3 was employed in the Brick Kiln and not in the Cold Storage, the petitioner-Cold Storage could not have produced non-existing documents.
Even in the proceedings before the Prescribed Authority, Minimum Wages Act, 1948, the specific case of the petitioner-Cold Storage was that the respondent No. 3 was not its workman and had never been employed by them. However, Shri V.R. Agarwal submitted that since the amount was of only Rs. 3,698.72/-, therefore the owner of the Ice Factory did not challenge the said finding before the superior forum. Thus from the entire gamut of facts and also from perusal of the original records of the Labour Court, the award of the Labour Court dated 3.5.1999 is not sustainable in law and is, therefore, quashed.
The writ petition is allowed. There shall be no order as to cost.
Let the original records of the Labour Court be returned to it.