United Provincial Transport Agency Through Its Partner Sri S P Gulati Vs Presiding Officer Labour Court and Sri Pyarey Lal S O Late Sri Ram Lal - Citation 489756 - Court Judgment

Judgment:

Sabhajeet Yadav, J.

1. By this petition, petitioner has challenged the award of the Labour Court, Allahabad dated 19.1.2004 published on 24.8.2004 contained in Annexure-1 of the writ petition inter alia on the grounds mentioned in the writ petition.

2. The relevant facts having material bearing with the question in controversy involved in the case are that the petitioner is transport agency (not transporter) in which goods are booked and are sent through trucks hired from transporters to different cities within the country as well as it receive goods from different transporters of the country and deliver it. The agency does not have any trucks/vehicles of its own and has a small office and a godown at Transport Nagar, Allahabad. The nature of business is such that the petitioner does not require more than two permanent employees in its establishment. The business of the petitioner being totally uncertain and is dependent upon the arrival of the truck loaded with goods booked to the agency of petitioner. Since the agency does not have any labourers of its own the work of loading and unloading is mostly done by freelance labourers engaged by the truck drivers themselves who reimburse these freelance labourers directly for the work taken from them as per terms settled with the transporters and the petitioner agency the work of loading and unloading the trucks hired from transporters is done by a batch of freelance labourers engaged by and through a mate available in the Transport Nagar area. This batch of labourers work directly under the supervision and control of the mate engaging them and the petitioner does hot exercise any control over there. The payments are made to the mates directly either per quintal or per truck load depending upon the terms settled with the mate who in turn engage freelance labourer to carry out the job. The batch of labourers who do the work of loading and unloading are paid through mate as per terms settled between them. Some time the payments are made to one of the labourers of the group when the mate is not available. It is further stated that there is no system of recording any attendance of these freelance labourers engaged by or through a mate for loading and unloading of the goods received/dispatched by the petitioner agency as in case of such agencies, business not being regular but being uncertain dependant upon arrival of trucks. These freelance labourers work for more than one or two agencies on the same day depending upon availability of work on arrival of trucks in other agencies in Transport Nagar area. These freelance labourers are not bound to work in one establishment nor the agencies like petitioner can exercise any control or take disciplinary action against them. Neither the petitioner nor other agencies in the area engaged in the business ever employs labourers of this nature on regular basis and there is no employer-employee relationship between the agencies and these hired of freelance labourers. It is also not feasible to engage them on regular basis otherwise the transport agency business itself would not be viable.

3. It is further stated that one Pyare Lal respondent no. 2 was one of such freelance labourer engaged by different mates to do the work of loading and unloading who had occasionally worked in the establishment of petitioner under their supervision and control. The petitioner did not have any control and supervision over the respondent no. 2 nor had any right to take disciplinary action against him nor was respondent no. 2 bound to work in the establishment of the petitioner and there was no relationship of master and servant between the petitioner and respondent no. 2. It is stated that the petitioner does not require any separate godown-keeper and the work relating to godown have been managed by two employees of petitioner agency. The dispute arose on account of fact that aforesaid Pyare Lal raised an industrial dispute that he was employed as a godown-keeper to the petitioner agency and that his services have been illegally terminated w.e.f. 7th July 2001. The petitioner did not receive any notice of conciliation proceeding and came to know about the alleged dispute when the petitioner received summons from the Labour Court, Allahabad. The said dispute referred to the Presiding Officer, Labour Court, Allahabad respondent no. 1 was registered as Adjudication Case no. 37 of 2002. Respondent no. 2 fifed his written statement before the Labour Court, Allahabad stating that he was appointed on a post of godown keeper/helper on 5.4.1975 land had continuously worked till 6.7.2001 and was drawing wage amounting Rs. 21107- per month and his services have been illegally terminated w.e.f. 7.7.2001. A copy of written statement of respondent no. 2 is on record as Annexure-2 of the writ petition. On receipt of summons from the Labour Court with respect to the alleged dispute raised by respondent no. 2 the petitioner filed its written statement before the Labour Court raising a preliminary objection as to the maintainability of order of reference by clearly taking the stand that there is no relationship of master and servant between the petitioner agency and the respondent no. 2 and therefore there does not exists any industrial dispute between the two and the order of reference made by State Government is bad in law. The petitioner further submitted that the order of reference made by the State Government is also without application of mind and it has wrongly presumed that respondent no. 2 was the workman of the petitioner and therefore the order of reference is bad on this ground too. The petitioner had stated that it has a transport agency and for the purpose of loading and unloading the loaders are engaged by truck drivers from the local area and are reimbursed by them and the petitioner has nothing to do with their business. A copy of written statement filed by petitioner is on record as Annexure-3 of the writ petition. The respondent no. 2 filed rejoinder statement denying the facts of the written statement of petitioner. A copy of which is on record as Annexure-4 of the writ petition; The petitioner filed its rejoinder statement to the written statement of workman denying the facts stated therein clearly stating that respondent no. 2 was never employed as a godown keeper/helper or any of the categories in the petitioner agency. A copy of rejoinder statement filed by petitioner is on record as Annexure-5 of the writ petition.

4. The respondent no. 2 filed an application before Presiding Officer, Labour Court calling for the petitioner to file the records of attendance and wage register from 1995 to 6.7.2001, besides other documents. The petitioner filed an affidavit in its reply to the application for summoning the documents clearly stating that it has got a very small office and the documents summoned are not maintained by the petitioner and are not in existence and are therefore not in a position to file the same. A true copy of the objection filed by the petitioner to the application of respondent no. 2 for summoning the documents is filed as Annexure-6 of the writ petition. Thereafter the respondent no. 2 filed 24 photostat copies of Form 'G' Register of Attendance and Wages prescribed under Rule 18(1) (b) & (c) of U.P. Dookan Aur Vanijya Adhisthan Niyamavali, 1963 attendance registers of different period showing his attendance and a photostat copy of the coin distributed by United Provincial Transport Company. The Photostat copies of the alleged attendance registers filed by respondent no. 2 are collectively filed as Annexure-7 and photo copy of silver coin filed by respondent no. 2 is filed as Annexure-7-A of the writ petition. It is further stated that the documents filed by respondent no. 2 alleging to be attendance register of petitioner agency are forged and fabricated documents as the petitioner does not maintain attendance register for such type of freelance labourers engaged by and through different mates from time to time. The said documents are not of petitioner's agency and on a bare perusal of attendance register purported to be of petitioner's agency would reveal that the alleged attendance registers of different period are manufactured and produced by respondent no. 2 as it does not bear signature of any of the partners of the petitioner's agency or any of permanent staff of petitioner's agency. In fact the Form 'G' Register of Attendance and Wages prescribed under Rule 18(1)(b) & (c) of U.P. Dookan Aur Vaniya Adhisthan Niyamavali, 1963 are freely available in the stationary shops and it is most likely that respondent no. 2 had purchased the said Form 'G' Register of Attendance & Wages from one of the stationary shops in market and manufactured his attendance for the purpose of setting up a claim of employment in the petitioner's agency.

5. The respondent no. 2 adduced his oral evidence before the Labour Court stating that he was working as a godown helper in the petitioner's agency and his services had been terminated w.e.f. 7.7.2001. A true copy of oral evidence adduced by the respondent no. 2 is on record as Annexure-8 of the writ petition. Sri S.M. Mishra adduced his oral evidence on behalf of petitioner in support of its case who has categorically stated besides other things that the documents filed by respondent no. 2 are not of petitioner's agency. A true copy of oral evidence adduced by Sri Shyam Murari is filed as Annexure-9 of the writ petition. The Labour Court made impugned award reinstating respondent no. 2 with full back wages. It is stated that subsequent to passing of the award and prior to its publication the establishment of petitioner has been permanently closed down w.e.f., 1.4.2004. A copy of intimation letter of closure served upon the Office of Deputy Labour Commissioner, Allahabad is filed as Annexure 10 of the writ petition. In view of fact the closure has taken place the relief of reinstatement granted by respondent no. 1 is not possible in facts and circumstances of the case. Had the change taken place prior to passing of the award the petitioner would have brought it to the knowledge of Labour Court and it would not have passed the award to the extent of reinstatement of respondent no. 2.

6. A detail counter affidavit has been filed wherein it has been stated that the respondent no. 2 was employed by the petitioner as a godown keeper/helper on 5.4.1975 and continued as such till 6.7.2001 when his services were illegally terminated without giving him any notice and compensation as required under Section 6-N of U.P. Industrial Disputes Act. He was paid wages at the rate of Rs. 2110/- per month before the date of termination of his services. It is stated that there are three Partners of the petitioner firm, namely Sri Girdhar Gopal Gulati, .Sri Jagdish Kumar Gulati and Sri Satya Pal Gulati which owns a fleet of about 15 trucks and the same operate under and for the petitioner. Since the petitioner's trucks operate throughout most part of the country and bring goods to Allahabad, the petitioner has to unload the same in its godown to be sent to their destinations in different parts of the city. The existence of godown is admitted by the petitioner itself. It is wrong to allege that the respondent no. 2 was freelance labourer and was engaged through different mates to work at the petitioner's establishment. It is further wrong to allege that the petitioner did not require a godown keeper and that the work of godown could be managed by two employees of the petitioner. The loaded trucks come to petitioner's godown throughout 24 hours including at night and |heir goods were unloaded and stored in the godown under the supervision and watch of deponent of the affidavit and other employees of petitioner during their duty hours. The copies of attendance register filed by the deponent are genuine documents and not forged and manufactured. Under the Act the petitioner was required to maintain it and produce before the Respondent no. I but the petitioner did not produce them before the Labour Court despite its order in this regard. It is further stated that there is no suggestion in cross-examination of the deponent by the petitioner that the copies of attendance and payment register filed by the deponent are forged and fabricated and purchased from the market. Copies of attendance and payment register filed before the respondent no. 1 are true Photostat copies of attendance and payment register maintained by the petitioner and bear the signatures of the deponent making his attendance and payment of his wages and maintained by the petitioner. It is incorrect to say that the petitioner has closed down its business rather it is still operating and running its business.

7. Heard Sri Vijai Ratan Agrawal, Advocate, learned Senior Counsel assisted by Sri Piyush Bhargava, Advocate for the petitioner and Sri Shyam Narain, Advocate for respondents. Since affidavits have been exchanged between the parties and case was ripped for final disposal on merits, therefore, with the consent of the learned counsels for the parties the case was heard for final disposal under the rules of the Court.

8. The thrust of the submission of learned counsel of the petitioner is that before the Labour Court it was categorically stated that respondent no. 2 was neither appointed by the petitioner nor paid wages directly by the petitioner and in feet was a freelance labourer and there was no employer and employee relationship between the petitioner agency and the respondent no. 2, therefore, the award passed by Labour Court is wholly misconceived, perverse and erroneous without jurisdiction. The Photostat copy filed by respondent no. 2 before the Labour Court purporting to be copy of attendance register of petitioner agency has not been proved at all in accordance with -law, particularly when it was specifically denied by the petitioner that the aforesaid Photostat copy of alleged attendance register is not of the petitioner's agency yet the respondent no. 1 has illegally relied upon the said inadmissible evidence in coming to the conclusion on the said basis that respondent no. 2 was an employee of petitioner's agency which is absolutely erroneous and perverse. The Labour Court has further misdirected itself in holding that silver coin produced by respondent no. 2 is of petitioner agency. A bare perusal of photocopy of silver coin would go to show that silver coin is of United Provincial Transport Co. (Registered) and not of petitioner agency. The United Provincial Transport Company is engaged in the business of transport having its own trucks. The two concerns are totally separate and distinct. In any case merely having a possession of silver coin of United Provincial Transport Company distributed once by United Provincial Transport Company during Deepawali to its customers does not go to show at all that respondent no. 2 was an employee of petitioner agency. It has also been stated in writ petition and submitted that it was not the case of respondent no. 2 that he was not gainfully employed, neither any issue were framed by Labour Court nor any finding has been recorded in this regard but has mechanically granted full back wages without application of mind and thus the award granting relief to the full back wages is liable to be set aside on this ground alone. Thus the impugned award passed by Labour Court is patently erroneous, misconceived being based on conjectures and surmises and suffers from vice of perversity and illegality and accordingly is liable to be quashed. Besides this it is further submitted that subsequent to passing of award and prior to its publication the establishment of the petitioner has been completely closed down w.e.f. 1.4.2004. In view of fact the closure has taken place, the relief of reinstatement granted by respondent no. 1 is not possible in facts and circumstances of the case. Had the aforesaid change taken place prior to passing of award, the petitioner would have brought it to the notice of Labour Court and it would not have passed the award granting the relief of reinstatement of respondent no. 2. Thus on this count also the award of Labour Court is not sustainable in the eyes of law and is liable to be quashed by this Hon'ble Court.

9. Contrary to it learned counsel for respondent no, 2 has submitted that on the basis of material available on record there exists employer and employee relationship between the petitioner and respondent no. 2. It is incorrect to say that such relationship does not exist between them. It is also submitted that since the petitioner did not raise any plea before the labour court that respondent no. 2 has been gainfully employed after termination of his service by the petitioner. In absence of any such plea of gainful employment by the petitioner labour court was not required to frame any issue on this point and labour court has legally granted the relief of full back wages to the respondent no. 2. The respondent no. 2 could not require prove before the labour court in negative. It is further submitted that no plea before the labour court has been taken by the petitioner that respondent no. 2 was freelance labourer. It is for the first time that this plea has been taken by the petitioner before this Court. In given facts and circumstances of the case the award made by labour court is fully justified and does not call for any interference by this Court in the process of judicial review under Article 226 of the Constitution of India.

10. I have gone through the rival contentions and submission of the parties and also perused the record. Thus on the basis of rival contentions and submissions of the parties the questions arise for consideration before this Court are as to whether on the basis of material available on record there exists master and servant relationship or employer and employee relationship between the petitioner and the respondent no. 2? If it is so as to whether the labour court was justified in granting relief of full back wages to the respondent no. 2 while making his reinstatement with continuity in service

11. Although in order to answer the question as to whether there exist relationship of master and servant or employer and employee, between the petitioner and respondent no. 2 it is necessary to examine that what was material before the labour court to establish such relationship between them. But before such inquiry is made it is necessary to examine which of the party was required to prove and establish such relationship. In this connection it is necessary to point out that it is well settled that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him to prove the same. In this regard it would be useful to refer some cases having material bearing on the issue.

12. In N.C. John v. Secretary, Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Ors., 1973 Lab IC 398, the Kerala High Court held :

'The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.'

13. In Swapan Das Gupta and Ors. v. The First Labour Court of West Bengal and Ors., 1976 Lab 1C 202 it has been held :

'Where a person asserts that he was a workman of the Company, and it is denied by the Company. It is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company but of some other person.'

14. Thus in view of the aforesaid legal position it is clear that the burden lies upon respondent no. 2 to establish relationship of master and servant or employer and employee between him and the petitioner. The question whether the relationship exists between the parties is one of the employer and employee is a pure question of fact. Ordinarily this Court while exercising its power of judicial review under Article 226 does not interfere with the findings of Labour Courts or Tribunal unless it is found that findings are manifestly erroneous or perverse or based no evidence or other parameters and norms of judicial review as settled by Hon'ble Apex Court from time to time in this regard. Thus now question arises to be considered by this Court as to whether the respondent no. 2 has discharged the burden of proof and onus lies upon him to establish relationship of master and servant or employer and employee between him and the petitioner or not? Before an enquiry is made in this regard it is necessary to examine legal aspect of the matter, having material bearing on the issue. The question as to when a person can be said to servant or employee of another person (employer or master) in a context of fact when a person can be said to be holder of a civil post, has been subject matter of consideration before Hon'ble Apex Court on numerous occasions wherein the phenomenon of Master and servant relationship have been dealt with in quite detail.

15. In State of Assam and Ors. v. Kanak Chandra Dutta, : (1968)ILLJ288SC of the decision a Constitution Bench of Hon'ble Apex Court has held that in order to determine the relationship of master and servant between the employer and employee certain relevant factors are necessary to be considered. In para 9 and 11 of the decision the Hon'ble Apex Court has held as under:

'(9)... The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. '

'(11) Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The state has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration and commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State.'

16. In case of Superintendent of Post Offices etc. etc. v. P.K. Rajamma etc. etc. reported in : [1977]3SCR678 Hon'ble Apex Court has held as under:

'For the appellants it is contended that the relationship between the postal authorities and the extra departmental agents is hot of master and servant, but really of principal and agent. The difference between the relations of master and servant and principal and agent was pointed out by this Court in Lakshminarayan Ram Gopal and Son Ltd. v. The Government of Hyderabad : [1954]25ITR449(SC) . On page 401 of the report the following lines from Halsbury's Laws of England (Hailsham edition) Volume 1, at page 193, Article 345, were quoted with approval in explaining the difference:

'An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work, an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master's implied agent, the extent of the agency depending upon the duties or position of the servant. '

The rules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be ho doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant. '

17. In State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors., : (1983)ILLJ284SC of the decision a Constitution Bench of Hon'ble Apex Court has held as under:

'27. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no Single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant.'

18. The aforesaid decisions of Hon'ble Apex Court have been followed by Hon'ble Apex Court again in State of U.P. v. Chandra Prakash Pandey and Ors., : [2001]2SCR506 , wherein the Kurk Amins appointed on commission basis were held Government servant. For ready reference para 13 and 14 of the decision of Hon'ble Apex Court rendered in aforesaid case is reproduced as under:

'13. In the light of the foregoing discussions, we consider these appeals. In the impugned judgment under Civil Apeal Nos. 8467-68 of 1995, the Division Bench of the High Court after due consideration recorded its conclusion which runs thus:-

'It appears that the Collector was the appointing authority and the petitioners were being paid out the cost recovered according to provisions for the recovery of land revenue and that they had been given revised scale of pay having been performing the same duties and responsibilities as other Kurk Amins of other departments and that their counterparts on salary basis having been so found to hold civil posts by the Hon'ble Supreme Court, as referred to hereinbefore, and that the petitioners were working under the control and supervision of Assistant Registrar of Co-operative Society and are performing public duties. ''14. Likewise, in another detailed judgment under Civil Appeal no. 6075 of 1997, rendered by another Division Bench of the High Court upon the matter being remanded by this Court, the-Court after due consideration came to the following conclusion:-

'It is not disputed that the appointing authority in case of both is the District Magistrate/Collector, the power to terminate the service of both the categories vests in the same authority, they are amenable to same disciplinary authority, the nature of their duties is the same and they exercise similar power. The Kurk Amin appointed on commission basis similarly enjoys and exercises the power to arrest a person, who is defaulter, can attach his property, which he can put to auction like his counterpart on regular basis. A Kurk Amin on commission basis and CM regular basis similarly follows the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1951 and U.P. Land Revenue Act, 1901 insofar as the recovery of land revenue.

Once the District Magistrate issues a recovery citation, both the sets of Kurk Amins, in order to execute the recovery, follow the same procedure and exercise the powers and they are under the control of one and same authority. The Kurk Amin be on commission basis or on regular basis, gets his salary from the Government Exchequer out of 10 per cent collection charges realized as arrears of land revenue. It is, thus, clear that both the sets of Kurk Amins -work in the same capacity under the control of the State Government and their appointment and duties fully comply with the tests laid down by the Supreme Court in the decision of State of Gujarat and Anr. v. Raman Keshav Soni and Ors., : (1983)ILLJ284SC '

19. Thus, on the basis of aforesaid discussion and the principles enunciated by Hon'ble Apex Court it is clear that in order to determine the relationship of master and servant between the employer and employee there are several factors which may indicate such relationship but none of the factor alone may be conclusive. In other words no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, right to select for appointment, right to appoint, right to terminate the employment, right to take other disciplinary action, right to prescribe conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, right to issue directions and right to determine and source from which wages or salary are paid or any such other circumstances are required to be considered to determine the existence of the relationship of master and servant. But these principles are of general in nature and applies generally to the employees and employees of other Corporations and Establishments. The position in the Labour Laws enactment are slightly different and much complicated and comprehensive which requires to be considered by this Court in some detail.

20. In this connection while placing reliance upon clause (iv) of Section 2, (i) of the U.P. Industrial Disputes Act, 1947 the learned counsel for the respondent no. 2 Sri Shyam Narain has submitted that having regard to the extensive definition of expression 'employer' as provided in clause (iv) of the Aforesaid definition clause where the owner of industry in course of or the purpose of conducting the industry contracts with any person for the purpose of execution by or under such person of whole or any part of any work which is ordinarily part of industry, the owner of such industry would be employer of such person. Elaborating his submission Sri Shyam Narain further submitted that in this connection the contract of service between the employer and employees has to be looked into by lifting the veil of sham or camouflage contracts entered into between employer and third person (contractor) who brought the employee into relationship of employer. In order to determine real nature of employment the tribunal or labour court has to examine the contract entered into between employer and contractor. Learned counsel for respondent no. 2 has submitted that since respondent employee was being engaged through Mates for loading and unloading work of petitioner, therefore, he, would be deemed to be employee of petitioner under broader sweep of description provided under Section 2(i) (iv) of U.P. Industrial Disputes Act. In support of his submission the learned counsel for respondent no. 2 has placed reliance upon the decisions rendered by Hon'ble Apex Court in Basti Sugar Mills Ltd. v. Ram Ujagar and Ors., : (1963)IILLJ447SC , and Bharat Heavy Electricals Ltd. v. State of U.P. and Ors., 2003(98) FLR 826 and on a decision rendered by a learned Single Judge of this Court on 11.3.2005 in Writ Petition no. 2226 of 2001, National Fertilizer Ltd. v. Labour Court and Ors. The aforesaid cases cited by learned counsel for respondent no. 2 shall be dealt with in seriatim hereinafter at relevant place.

21. Contrary to it learned Senior Counsel Sri Vijai Ratan Agrawal has submitted that the arguments of Sri Shyam Narain to the effect that the respondent no. 2 was being engaged through mates for loading and unloading work of petitioner, therefore, he would be deemed to be as employee of petitioner by virtue of Section 2 (i) (iv) of U.P. Industrial Disputes Act. is not available for him for the simple reason that this point was never raised by respondent at any stage and no foundation either before the Labour Court or before this Court through counter affidavit filed in the writ petition has been laid by the respondent-workman, therefore, this question cannot be permitted to be raised for the first time during the arguments in the writ proceeding before this Court. However, he submitted that the submission of learned counsel for respondent no. 2 in given facts and circumstances of the case is wholly incorrect and misconceived and in support of his submission he placed reliance upon the decision of Apex Court rendered in Workmen of Nilgiri Co-operative Mkt. Society Ltd. v. State of Tamil Nadu and Ors. : (2004)IILLJ253SC .

22. In order to appreciate the submissions of learned counsels of the parties it is necessary to reproduce Section 2 (i) of U.P. Industrial Disputes Act, 1947 as under :

'(i) 'Employer' includes -

(i) an association or a group of employers;

(ii) where an industry is conducted or carried on by a department of the State Government, the authority specified in that behalf, and where no such authority has been specified, the head of such department;

(iii) where an industry is conducted or carried on by or on behalf of a local authority, the chief executive officer of such authority;

(iv) where the owner of any industry in the course of or for the purpose of conducting the industry contracts with any person for the execution by or under such person of the whole or any part of any work which is ordinarily part of the industry, the owner of such industry;'

23. Thus in view of the rival submissions of learned counsels of the parties the question arises for consideration as to whether the contract is contract of service or contract for service and whether the concerned employee is employee of' the contractor or employee of employer? Although this question is very much comprehensive and it is not easy task to formulate the factors or principles for determination of such relationship having universal application in all the cases but the question has received, consideration of Hon'ble Apex Court at numerous occasion. I would like to refer some cases having material bearing on the issue hereinafter.

24. In Shivnandan Sharma v. Punjab National Bank Ltd., AIR 1955 SMC 404, the test to determine the relationship between two parties as master and servant or employer and employee have been dealt with by Hon'ble Apex Court in detail in para 14 and 15 of the decision which is reproduced as under:

'(14). ... If the Treasurers' relation to the Bank was that of servants to a master, simply because the servants were authorized to appoint and dismiss the ministerial staff of the Cash Department would not make the employees in the Cash Department independent of the Bank. In that situation the ultimate employer would be the Bank through the agency of the Treasurers....

(15). It would thus appear that the question as to whose employee a particular person was has to be determined with reference to the facts and circumstances of each individual case. Lord Porter in the course of his speech in the reported case (supra) at page 17 has observed as follows:

'Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. '

25. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors., : (1957)ILLJ477SC , the Hon'ble Apex Court has again considered the question of determination of relationship of master and servant in detail and has drawn distinction between the employees and independent contractor. In this connection it would be useful to refer para 9,10,11,12,13,15 and 16 of the decisions as under:

' (9). The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: 'In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how itself it shall be done '. (Per Hilbery, J. in Collins v. Hertfordshire County Council, 1947 KB 598 at page 615(A)).

(10). The test is, however, not accepted as universally correct. The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. v. Macdonaldand Evans, 1952-1 TLR 101 at p. Ill (B) are apposite in this context:

'But in Cassidy v. Ministry of Health, 1951-1 TLR 539 at p. 543: 1951-2 KB 343 at pp. 35203(c), Somervell LJ pointed out that test is not universally correct. There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell went on to say: One perhaps cannot get much beyond this: 'Was the contract as contract of service within the meaning which an ordinary man would give under the words? I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man and a newspaper contributor are, employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it' (11). We may also refer to a pronouncement of the House of Lords in Short v. J. & W. Henderson, Ltd., 1946-62 TLR 427 at p. 429 (D), where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal, viz., (a) the master's power of selection of his servant, (b) the payment of wages or other remuneration, (c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal, but observed:

'Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and restate these indicia. For example, (a), (b) and (d) and probably also (c ), are affected by the statutory provisions and rules which restrict the master's choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal is similarly affected. These matters are also affected by trade union rules which are at least primarily made for the protection of wage-earners'. (12). Even in that case, the House of Lords considered the right of supervision and control retained by the employers as the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship between the parties and affirmed that 'the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship'.

(13). The position in-low is thus summarized in Halsbury's Laws of England, Hailsham edition, Vol. 22, page 112, para 191:-

'Whether or not, in any given case, the relation of master and servant, exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.';

and until the position is restated as contemplated in Short v. J. & W. Henderson Ltd., (D), supra, we may take it as the prima facie test for determining the relationship between master and servant.

(15). The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. As has been noted above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done (Vide observations of Somervelle, L J. in Cassidy v. Ministry of Health (C), (supra), and Denning, L. J. in Stevenson, Jordan and Harrison Ltd. v. Macdonald and Evans (B), (supra).

(16). The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L. J., at page 549 in Simmons v. Heath Laundry Co., 1910-1 KB 543 at pp. 549, 550 (F):- 'In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree the probability that the services rendered are of the nature of professional services and that the contract is not one of service'.

26. D.C. Dewan Mohideen Sahib and Sons v. The Industrial Tribunal, Madras : [1964]7SCR646 is a case which involved workers who used to take leaves home for cutting them in proper shape. However, the actual rolling by filling the leaves with tobacco took place in places what were called contractors' factories. The bidis so rolled would be delivered to the appellant and nobody else. The price of the raw-material as also the finished product would remain the same as fixed by the appellant therein. The Hon'ble Apex Court having regard to the materials on records has held that the intermediaries were* mere agents or branch managers appointed by the management and the relationship of employer and employee subsisted between the appellant and the bidi rollers, inter alia, on the ground that the so-called independent contractors served no particular duties and discharged no special functions and had no independence at all. They were impecunious persons who could hardly afford to have any factory of their own and in fact some of them were ex-employees of the appellant.

27. In V.P. Gopala Rao v. Public Prosecutor, Andhra Pradesh, : 1970CriLJ22 , while taking note of earlier decision of Apex Court and decisions of Courts in England in context of the relationship of master and servant in para 8 and 11 of the decision Hon'ble Apex Court held as under :

'(8). In Chintaman Rao v. State of Madhya Pradesh, : 1958CriLJ803 the Court gave a restricted meaning to the words 'directly or through an agency' in Section 2 (1) and held that a worker was a person employed by the management and that there must be a contract of service and a relationship of master and servant between them. On the facts of that case the Court held that certain Sattedars were independent contractors and that they and the coolies ensased by them for rolline bidis were not 'workers'.

(11). . . There is no abstract a priori test of the work control required for establishing a contract of service....'

28. In Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr., : (1973)IILLJ495SC , the job required to be performed was skilled and professional in nature. His Lordship Hon'ble Mr. Justice Mathew, (as he then was) speaking for the Bench observed that the test of right to control the manner of doing the work as traditionally formulated cannot be treated as an exclusive test. The Apex Court applied organization test in the fact situation obtaining therein laying importance on the fact that the employer provides the equipment and stating that where a person hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipments, whereas if he employs a servant he expects to provide the same himself. The supply of machine was highlighted having regard to that fact that the sewing machine on which the workers do the work generally belong to the employer is an important consideration for deciding the relationship of master and servant. Besides the same the right of the employer to reject the end product and directing the worker to restitch it 'also led Hon'ble Apex Court to conclude that the element of control and supervision was also present.

29. In Hussainbhai, Calicut v. The Alath Factory Thozhilali Union, Kozhikode AIR 1978 S.C. 410, a number of workmen, were engaged in the petitioner's factory to make ropes. But they were hired by contractors who had executed agreements with the petitioners to get such work done. When 29 of these workmen were denied employment, an industrial dispute was referred by the State Government. The Industrial Tribunal held them to be workmen of the petitioner. This award was challenged by the petitioner before the High Court and the learned single Judge held that the petitioner was the employer and the workmen were employees under the petitioner. The Division Bench of the High Court upheld this decision. While dismissing the special leave petition against the said decision, Hon'ble Apex Court observed that the facts found were that the work done by the workmen was an integral part of the industry concerned. The raw material was supplied by the management, the factory premises belonged to the management, the equipment used also belonged to the management and the finished product was taken by the management for its own trade. The workmen were broadly under the control of the management and the defective articles were directed to be rectified by the management. These circumstances were conclusive to prove that the workmen were workmen of the petitioner. The Hon'ble Apex Court further held that if the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of the enterprise, the absence of direct relationship or the presence of dubious intermediaries cannot snap the real life bond. If however, there is total dissociation between the management and the workmen, the employer is in substance and in real life terms another. The true test is where the workers or group of workers labour to produce goods or services and these goods or services are for the business of another, that another is in fact, the employer. He has economic control over the workers' skill, subsistence, and continue employment. If for any reason, he chokes off, the workers are virtually laid off. The presence, of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contractual is of no consequence when on lifting the veil or looking at the conspectus of factors governing employment, the naked truth is discerned and especially since it is one of the myriad devices restorted to by the management to avoid responsibility when labour legislation casts welfare obligations on real employer based on Articles 38, 39, 42 and 43 of the Constitution.

30. In Shining Tailors v. Industrial Tribunal II, U.P. Lucknow and Ors., : (1983)IILLJ413SC , payments used to be made to the workmen on piece-rates in a big tailoring establishment, Hon'ble Mr. Justice Desai (as he then was) in the facts and circumstances of the case observed that right of removal of the workmen or not to give the work had the element of control and supervision which had been amply satisfied in that case. The question which arose for consideration was as to whether merely because the concerned workman was paid on piece rate was' itself indicative of the fact that there existed a relationship of principal employer and independent contractor is not correct. For ready reference para 5 of the decision reads as under;

'5. ...If 'every piece rated workman is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression 'workman' as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workman was the test of control and not the method of payment.... 'Piece rate payment meaning thereby payment correlated to production is a well-recognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large, But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments : (1973)IILLJ495SC , Mathew, J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last we decades the emphasis in the field shifted from and no longer rests exclusively or strongly upon the question of control. It is further observed that a search for a formula in the nature of a single test will not serve any useful purpose, and all factors that have been referred to in the cases on topics, should be considered Jo tell a contract of service. Approaching the matter from this angle, the Court observed that the employer's right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case....'

31. In Management of Puri Urban Co-operative Bank v. Madhusudan Sahii and Anr. : AIR1992SC1452 , the Hon'ble Apex Court has observed :

'... It stands established that Industrial Law revolves on the axis of master and servant relationship and by a catena of precedents it stands established that the prime facie test of relationship of master and servant is the existence of alia right in the master to supervise and control the work done by the servant (the measure of supervision and control apart) not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. ...'

32. At this juncture it is necessary to point out that there cannot be any doubt whatsoever that where a person is engaged through an intermediary or otherwise for getting a job done, a question may arise as the appointment of an intermediary was merely sham and nominal rather camouflage where a definite plea is raised in Industrial Tribunal or the Labour Court, as the case may be, and in that event, it would be entitled to pierce the veil and arrive at i a finding that the justification relating to appointment of a contractor is sham or nominal and in effect and substance there exists a direct relationship of employer and employee between the principal employer and the workman.

33. In this connection would be useful to refer the decision of Hon'ble Apex Court rendered in Gujarat Electricity board Thermal Power Station, Ukai. v. Hind Mazdoor Sabha and Ors., : (1995)IILLJ790SC : wherein Apex Court has held that if there is genuine labour contract between the principal employer and contractor the authority to abolish contract labour vests in appropriate government and not in any court including industrial adjudicator. If the appropriate government abolishes the contract labour system in respect of establishment the industrial adjudicator would after giving opportunity to the parties to place material before it decide whether the workmen be absorbed by the principal employer, if so how many of them and what terms, but if the appropriate government decline to abolish the contract labour, the industrial adjudicator has to reject the reference. If however so called contract is not genuine but is sham and camouflage to hide the reality, the court or industrial adjudicator would have jurisdiction to entertain such a dispute and grant necessary relief.

34. In Employers in relation to the Management of Reserve Bank of India v. Workmen, : (1996)IILLJ42SC , it was held by the Hon'ble Apex Court that in the absence of statutory or other legal obligations and in the absence of any right in the Bank to supervise and control the work or details there in any manner regarding the canteen workers employed in the three types of canteens, it cannot be said that relationship of master and servant existed between the Bank and the various persons employed in the three types of canteens and in that situation, the demand for regularisation was considered to be unsustainable.

35. In Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union and Anr., : (2000)ILLJ1618SC , the Hon'ble Apex Court observed:

'The standards and nature of tests to be applied for finding out the existence of master and servant relationship cannot be confined to or concretized into fixed formula(e) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of any one or more or their absence in a given case cannot by itself be held to be decisive of the whole issue, since it may depend upon each case to case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalize and peg them into any pigeonhole formulae, to be insisted upon as proof of such perpetuate practicing unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. Neither all the tests nor guidelines indicated as having been followed in the decisions noticed above should be invariably insisted upon in every case, nor the mere absence of any one of such criteria could be held to be decisive of the matter. A cumulative consideration of a few or more of them, by themselves or in combination with any other relevant aspects, may also serve to be a safe and effective method to ultimately decide this often agitated question. Expecting similarity or identity of facts of all such variety or class of cases involving different type of establishment and in dealing with different employers would mean seeking for things, which are only impossible to find. '

36. In Indian Banks Association v. Workmen of Syndicate Bank and Ors. (2001) 3 SCC 36), the question which arose for consideration was as to whether the deposit collectors who received commission is in reality a wage which would depend on the productivity. Such commission was paid for promoting the business of the bank. Having regard to the fact that the banks have control over the deposit collectors, they were considered to be their own workers.

37. In Steel Authority of India Ltd. and Ors. v. National Union of Water Front Workers and Ors. : (2001)IILLJ1087SC a Constitution Bench of the Hon'ble Apex Court while considering the question as to whether having regard to the provisions contained in Section 10 of the Contract Labour (Regulation and Abolition) Act, the workmen employed by the contractors in the event of abolition of contract labour were entitled to be automatically absorbed in the services of the principal employer. While answering the question in the negative the Hon'ble Apex Court reversed the earlier decision rendered in Air India Statutory Corporation and Ors. v. United Labour Union and Ors., : (1997)ILLJ1113SC . The Hon'ble Apex Court referring to a large number of decisions and tracing the history of the Contract Labour (Regulation and Abolition) Act, noticed that the Industrial Tribunal although prior to coming into force colild issue directions for such regularisation but such directions could not be issued after coming into force of the Act. In view of the Constitution Bench decision in Gammon India Ltd. and Ors. etc. v. Union of India and Ors., : (1974)ILLJ489SC , the Apex Court held that although the principle that a beneficial legislation needs to be construed liberally in favour of the class for whose favour it is intended, the same would not extend to reading in the provisions of the Act what the Legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the Legislature. Upon analyzing the case law, the categories of cases were subdivided into three as under:

'An analysis of the cases, discussed above, shows that they Jail in three classes: (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) wherein discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the Courts have held that the contract labour would indeed be the employees of the principal employer. '

38. In Mishra Dhatu Nigam Ltd., etc. v. M. Venkataiah and Ors. etc. etc., : (2003)IIILLJ847SC , as the appellants were required by the Factories Act to provide canteen facilities and since the workers engaged the contractors had been held to be the employees of the principal employers, the Hon'ble Supreme Court held that the workers engaged contractors were entitled to regularisation of their services.

39. In Workmen of Nilgiri Co-operative Mkt. Society's case (supra) Hon'ble Apex Court has surveyed the case laws almost exhaustively on the question in issue and laid down that for determination of relationship of employer and employee certain factors may be considered as relevant factors. For ready reference para 37, 38 and 39 of the aforesaid decision is reproduced as under:

'37. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the Court is required to consider several factors which would have a bearing on the result : (a) who is appointing authority; (b) who is the pay master; (c ) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject.

38. With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests wherefor it may be necessary to examine as to whether the workman concerned was fully integrated into the employer's concern meaning thereby independent of the concern although attached therewith to some extent.

39. I.T. Smith and J.C. Wood in 'Industrial Law', third edition, at pages 8-10 stated:'In spite of the obvious importance of the distinction between an employee and an independent contractor, the tests to be applied are vague and may, in a borderline case, be difficult to apply. Historically, the solution lay in applying the 'control' test, i.e. could the employer control not just what the person was to do, but also the manner of this doing it - if so, that person was his employee. In the context in which it mainly arose in the nineteenth century, of domestic, agricultural and manual workers, this test had much to commend it, but with the increased sophistication of industrial processes and the greater numbers of professional and skilled people being in salaried employment, it soon became obvious that the test was insufficient (for example in the case of a doctor, architect, skilled engineer, pilot, etc.) and so, despite certain attempts to modernize it, it is now accepted that in itself control is no longer the sole test, though it does remain a factor and perhaps, in some cases, a decisive one. In the search for a substitute test, ideas have been put forward of an 'integration' test, i.e. whether the person was fully integrated into the employer's concern, or remained apart from and independent of it. Once again, this is not now viewed as a sufficient test in itself, but rather as a potential factor (which may be useful in allowing a Court to take a wider and more realistic view). The modern approach has been to abandon the search for a single test, and instead to take a multiple or 'pragmatic' approach, weighing upon all the factors for and against a contract of employment and determining on which side the scales eventually settle. Factors which are usually of importance are as follows- the power to select and dismiss, the direct payment of some form of remuneration, deduction of PA YE and national insurance contributions, the organization of the workplace, the supply of tools and materials (though there can still be a labour-only sub-contract) and the economic realities (in particular who bears the risk of loss and has the chance of profit and whether the employee could be said to be 'in business on his own account). A further development in the recent case law (particularly concerning typical employments) has been the idea of 'mutuality of obligations' as a possible factor, i.e. whether the course of dealings between the parties demonstrates sufficient such mutuality for there to be an overall employment relationship.'

40. In the aforesaid case while concluding the judgement in para 98 and 100, Hon'ble Apex Court has held as under :

'98. It has been found that the employment of the , workmen for doing a particular piece of work is at the instance of the producer or the merchants on an ad hoc basis or job to job basis and, thus, the same may not lead to the conclusion that relationship of employer and employee has come into being. Furthermore, when an employee has' a right to work or not when an offer is made to him in this behalf by the producer or by the merchants will also assume significance.

100. ... In a situation of this nature and particularly having regard to the fact that the respondent is a co-operative society which only renders services to its own members and despite the fact that in relation thereto it receives commission at the rate of one percent, both from the farmers as also the traders; it does not involve in any trading activity. Although rendition of such service may amount to carrying out an industrial activity within the meaning of the provisions of the Industrial Disputes Act, 1947 but we are in this case not concerned with the said question. What we are concerned with is as to whether the concerned workmen have been able to prove that they are workmen of the Society. They have not.'

41. Thus from a conspectus of whole issue, it is clear that in order to determine the relationship of master and servant between employer and employee the judicial approach should not be confined to supervision and control test and organization test as only factors which can be said to be decisive. Rather the court or tribunal is required to consider several factors which would have bearing on the question in controversy; such as (1) who is appointing authority (2) who is paymaster (3) who can dismiss (4) how long alternative service lasts (5) the extent of control and supervision (6) nature of job e.g. whether it is professional or skilled work (7) nature of establishment (8) right to reject. But in some problematic cases these factors other collectively or severally could not be found sufficient to solve the problem, therefore, in search of for a substitute test ideas have been put forward of an integration test i.e. whether the person was fully integrated into employer's concern or remained apart from and independent of it. Although this is not now viewed as sufficient test in itself but rather as a potential factor which may be useful in allowing the court to take a wider and more realistic view. Therefore, in order to have pragmatic approach besides the aforesaid factors other factors such as direct payment of some form of remuneration, deduction of pay and national insurance contributions, the Organization of work-place, supply of tools and materials and economic realities bears the risk of loss and has the chance of profit and whether the employee can be said to be in business on his own account may also be taken into consideration.

42. Now applying the principles deduced from the aforesaid enunciation of law herein before in facts of the case in hand it is to be seen that the respondent no. 2 was under obligation to prove the existence of relationship of master and servant between him and petitioner with the assistance of relevant factors discussed herein before. But from the perusal of material available on record, it appears that before the Labour Court the respondent no. 2 did not produce either any appointment letter or any other record to show that he was selected and appointed by the petitioner and working in his supervision and control and was being paid his remuneration by the petitioner and he was fully integrated into the work and business of petitioner alone and has no other independent work or business apart from the petitioner's concern. The only material on record has been placed by the respondent no. 2 before the labour court to establish relationship of master and servant between him and the petitioner are certain papers of Photostat copies of alleged staff attendance and payment of wage register prescribed on a format 'G' under Rule 18(1) (b) & (c) of U.P. Dookan Aur Vanijya Adhisthan Niyamavali, 1963. According to the petitioner the aforesaid Photostat it copy of form 'G' does neither bears signature of employer nor signature of any permanent employer it was fabricated by the respondent no. 2 by purchasing the prescribed form from stationary shops as available in the market, therefore, such Photostat copies produced by the respondent no. 2 is neither copy of any real and existing register with the petitioner nor admissible in evidence, as such finding of labour court on the basis of the aforesaid Photostat copies filed by the respondent no. 2 is wholly erroneous and not sustainable.

43. Contrary to it the learned counsel for respondent no. 2 has submitted that since the petitioner was required to maintain attendance register of employees under the provisions of Uttar Pradesh Dookan Aur Vanijya Adhisthan Adhiniyam-1962 and rules framed thereunder and since the employer has failed to produced the record of attendance register and payment register of the respondent no. 2 before the labour court, therefore, the labour court had no option but to draw adverse inference against the petitioner and rightly accepted the Photostat copies filed by respondent no. 2 as secondary evidence and the reliance placed by labour court on the aforesaid Photostat copies in this regard cannot be found faulty on that score.

44. On the basis of aforesaid submissions of the learned counsel for the parties another incidental question arises for consideration as to whether the petitioner was required to maintain the staff attendance and wage register under the provisions of Uttar Pradesh Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 and the rules framed thereunder? In case the petitioner fails to maintain such register and does not produce before the labour court as to whether the labour court could be justified in drawing adverse inference against the petitioner and could be further justified to accept the photostat copy of Form 'G' prescribed under the rules framed under the aforesaid Adhiniyam 1962 as secondary evidence? Putting the aforesaid questions differently basically two incidental questions are required to be considered by this Court viz ;(i) as to whether Photostat copy of alleged staff attendance and payment of wage register is admissible as secondary evidence; and (ii) as to whether failure to produce the original attendance and payment of wage register by the petitioner before trie Labour Court would permit the Labour Court to raise a presumption that the petitioner must have possessed original record of the aforesaid register and on failure to produce the same the Labour Court was entitled to draw adverse inference against the petitioner?

45. Since answer of first question is dependant upon the answer of second question to some extent, therefore, I would like to deal second question first. In this connection it is necessary to point out that under Section 32 of Uttar Pradesh Dookan Aur Vinijya Adhishthan Adhiniyam, 1962 hereinafter referred to as Act 1962 an employer is required to maintain such registers and records and display such notices, as may be prescribed. Under Section 33 of the aforesaid Act any person, who contravenes, or fails to comply with any of the provisions of the aforesaid Act, or of the rules made thereunder, other than those of sub-section (1) of Section 20, shall be guilty of an offence under the aforesaid Act. Section 35 of the Act provides punishment of an offence under the Act and provisions have been made to the effect that any person guilty of an offence under this Act shall be liable to fine which may, for the first offence, extend to one hundred rupees and, for every subsequent offence, to five hundred rupees. Besides the aforesaid provisions under Section 29 of the Act the State Government is empowered to appoint Inspectors i.e. Chief Inspector and Deputy Chief Inspector, for whole of the Uttar Pradesh, and as many Inspectors for different areas thereof as may be considered necessary. Under Section 30 of the Act the power of Inspectors have been given which inter alia provides that the Inspector can make necessary inspection of the shop or commercial establishment for the purpose of examining the registers, records or other documents kept therein to insure the compliance of provisions of Act and Rules made thereunder. Under Section 40 of the Act, the rule-making power has been given to the State Government for carrying out the purposes of the.Act by making rules in this regard and particularly in respect of the registers and records to be maintained by an employer.

46. It appears that in exercise of the rule-making power the State Government has framed the rules namely Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963. Rule 18 has been framed to carry out the purpose and object of Section 32 of the Act which provides that (1) Every employer shall -(a) ...;(b) Employing employees exceeding ten but not exceeding twenty-five shall maintain the register of attendance and wages in Form 'G' and also maintain a register of leave in Form 'H'; (c ) Employing employees exceeding 25 shall be required to maintain a register of attendance and wages in Form 'G', a register of leave in Form 'H', a register of deductions from wages in Form 'D'. The Form 'G' contains 17 columns and a foot format for the purpose of signature of employee and employer on payment and receipt of the wages. For ready reference Form 'G' prescribed under Rule 18 (1) (b) and (c ) is reproduced as under :

FORM'G'

{See Rule 18(1 Kb) and (c)}

(Uttar Pradesh Dookan Aur Vinijya Adhishthan Niyamawali, 1963)

Name of employee.........................Man/Woman/Young Persons/Child,

Father/Husband's name.......................

Address.......................... Address. ....................Nature of employment.....................Whether

employed on daily, monthly, contract or piece-rate wages with rate..............

Wage period................... .Date of Employment..............................

Date Work begins Rest Work ends Overtime worked Wages earned

--------------- ------------------

From To Basic DFA Overtime

--------------------------------------------------------------------------------

1 2 3 4 5 6 7 8 9

--------------------------------------------------------------------------------

Signature of thumb- Advance

Impression of --------------------------------------------------------

Amount Advanced Amount recovered Balance

Employee ------------------

Amount Date

--------------------------------------------------------------------------------

10 11 12 13 14

--------------------------------------------------------------------------------

Fines or other deduction vide Net Amount due Signature of thumb-impression

Forms D and E of employee

--------------------------------------------------------------------------------

15 16 17

--------------------------------------------------------------------------------

Received Rs..........................P .................in words Rupees......................................on account of wages for the wage

period from...........................to...............................

Signature of employee................Signature of employer...................

47. Thus from a bare perusal of aforesaid provisions of Act it is clear that if employer fails to maintain register as prescribed under the rules i.e. Rule 18 of Rules, the employer shall be guilty of contravention of the provisions of Act and rules made thereunder and as such liable to be punished under Section 35 of the Act, but merely on account of fact that shop and commercial establishment is registered under the Act, it cannot leads to a necessary conclusion that the provisions of the Act and Rules made thereunder in respect of maintenance of records and registers has also been complied with by the employer, otherwise the provisions for taking punitive action for non-compliance and contravention of the provisions of Act and Rules made thereunder would not have been mao under the Act itself. Section 38 of the Act would also be relevant and assumes significance in this regard which deals with the presumption under the Act and provides that whenever a shop or commercial establishment is actually opened, it shall be presumed that it is opened for the service of any customer or for the business, trade or manufacture normally carried on in the shop or commercial establishment except the aforesaid presumption, the Act does not permit any other type of presumption to be raised under the provisions of the Act.

48. In a similar facts and circumstances of the case, Hon'ble Apex Court had occasion to consider the question as to whether due to non-compliance of the provisions of registration and license by principal employer and/or contractor under Contract Labour (Regulation and Abolition Act) 1970 and rules made thereunder, the contractor's employee would be deemed to be employee of principal employer in case of Denanath and Ors. v. National Fertilisers Ltd. and Ors. : (1992)ILLJ289SC . There were differences in opinions amongst the High Courts. While resolving the controversy Hon'ble Apex Court has answered the question in negative, holding that the only consequence provided in the Act where either the Principal Employer or the labour contractor violates the provision of Section 9 and 12 respectively is the penal provision as envisaged under the Act for which reference may be made to Section 23 and Section 25 of the Act. But merely because the contractor or the employer had violated any provision of the Act or rules the court could not issue any mandamus for deeming the contract labourers as having become the employee of the principal employer.

49. In Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors., : (2002)IILLJ544SC of the decision Hon'ble Apex Court has held as under :

'19... appears to us that the High Court proceeded to conclude that the labour contract was not genuine and the workers of the Union were employees of the corporation because the corporation and the contractors did not comply with the provisions of the CLRA Act. Conclusion that the contract was sham or it was only camouflage cannot be arrived at as a matter of law for noncompliance of the provisions of the CLRA Act but a finding must be recorded based on evidence particularly when disputed by an industrial adjudicator as laid down in various decisions of this Court including the constitution bench judgment in SAIL....'

50. Now testing the matter from different and another angle at the anvil of general principles of presumption a question arises to be considered that as to whether the Court would be justified in raising presumption under Section 114 Illustration 'G' of Evidence Act, which provides that 'evidence which would be and is not produced would if produced be unfavourable to the person who withholds it'. In this regard it is necessary to point out that before an adverse inference can be drawn bv raising presumption under Section 114 Illustration 'G' of Evidence Act court must be satisfied that documents exist and could be produced but the same has not been produced by the party who is in possession of such documents. In this connection a reference can be made to decision of their Lordship of Privy Council rendered in Mahabir Singh v. Rohini Ramanadhwaj Prasad Singh , wherein at page 91 of the report Their Lordship of Privy Council held as under:

'It is right to refer to the absence of certain evidence, which the Subordinate Judge regarded as justifying inferences unfavourable to the respondent. As regards the horoscope and the books of account there seems little doubt that these existed and that if still available and produced, they would have been of importance as evidence. But the circumstances under which the Court would be entitled to draw inferences unfavourable to the respondent are provided for by Section 114(g), Evidence Act, and the Court must be satisfied that the evidence could be produced. The appellant has not attempted to prove that the account books are in existence and could be produced. Itjs most regrettable that the right of discovery is not fully taken advantage of in such a case as this, where documentary evidence, if it is still available, might afford valuable evidence. But the appellant's failure to exhaust this source cannot be used against the respondent. Similarly, in the case of the horoscope, Rani Basant Kunwar named the person in whose possession it might be, put the appellant made no attempt to pursue enquiries as to its existence. '

51. Similar view has also been taken by the Hon'ble Apex Court in case of Srichand K. Khetwani v. The State of Maharashtra : 1967CriLJ414 , wherein it has been held by Hon'ble Apex Court that an adverse inference can be drawn only if there is withholding of evidence and not on account of failure to obtain evidence. For ready reference para 8 and 9 of the decision is reproduced as under:

'8...The High Court cannot be said to have been in error in taking these further reasons into consideration and holding that no adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been obtained with respect to the endorsement on the acknowledgment receipt.

9. Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been and, therefore, no question of presuming that that evidence would have been against the prosecution, under Section 114, Illustration (g) of the Evidence Act, can arise.'

52. Thus from the aforesaid settled legal position it is clear that before an adverse inference can be drawn in respect of withholding of evidence against party concerned it is necessary for the court to be satisfied about the existence of the documents in possession of party against whom adverse inference sought to be drawn, until and unless such satisfaction is arrived at on the basis of necessary enquiry made in this regard, no presumption and adverse inference against the party in question can be drawn by the court. Applying the aforesaid settled legal principle in case in question it is clear that before drawing adverse inference against the petitioner Labour Court did not make any inquiry to ascertain the fact as to whether the register of attendance and wages prescribed under Rule 18 (1) (b) and (c ) on Form 'G' has been maintained by the petitioner and as to whether it is actually in existence and in possession of the petitioner or not? In order to ascertain this fact the Labour Court could direct the Inspectors for making inspection of shop or commercial establishment and examine the Inspector appointed under the Act having assigned the duties of inspecting the shops and commercial establishment in the area in question but without undertaking such exercise and making any inquiry in this regard it appears that since the petitioner's shop has been registered under the provisions of Act, 1962, therefore, Labour Court has erroneously assumed that the owner of commercial shop and establishment must also have maintained the aforesaid alleged register of attendance and wage without any proof of the existence of the same. Thus, I have no hesitation to hold that the adverse inference and presumption drawn by Labour Court in this regard against the petitioner is wholly erroneous, misconceived and not sustainable.

53. Contrary to it learned counsel for the respondent no. 2 Sri Shyam Narain, Advocate has placed reliance upon a decision of Hon'ble Apex Court rendered in this regard in Bharat Electrical Ltd. v. State of U.P. and Ors., : (2003)IIILLJ215SC . In para 6 of the decision Hon'ble Apex Court had taken note of the findings of facts recorded by High Court in impugned judgment, wherein it was observed that respondent- workmen were engaged for working as gardeners in the Factory premises campus and residential colony of the appellant. Ram Swarup, Head Mali was admittedly employed by appellant, he use to supervise the work of the respondent-workmen. Another employee of the appellant namely Sadhuram use to maintain the record of the attendance of the respondent-workmen, he destroyed the attendance register by tearing it off at the instance of one Mr. Varshney who was working as Manager with the appellant. Further if the respondent-workmen were engaged by independent contractors the record of their attendance should have been maintained by them. Thus considering the facts and circumstances and finding of facts recorded by labour court, High Court maintained the award of labour court which was not disturbed by the Hon'ble Apex Court. 'Thus the facts of the instant case is quite distinguishable from the aforesaid case. In the aforesaid ease the facts of existence of attendance register and tearing it off was found proved from evidence adduced before the labour court, therefore, the aforesaid case can be of no assistance to the case of respondent-workman.

54. Now first and remaining incidental question arises for consideration as to whether the Photostat copy of alleged attendance and wage register relied upon by the Labour Court is admissible in evidence or not? In this connection it is necessary to point out that Section 62 of the Evidence Act provides for primary evidence which means the document itself produced for the inspection of the Court and Section 63 of the Evidence Act deals with the secondary evidence which means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

55. Illustration (a) of Section 63 of Evidence Act provides that a photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. Illustration (b) provides that a copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. Thus from a bare reading of the aforesaid illustrations appended to section it is clear that mere filing of Photostat copy of document unless it is proved by other evidence showing that same is copied or prepared from original documents the same cannot be treated to be secondary evidence and accordingly can not be admissible as such in evidence but from perusal of impugned award of Labour Court there is nothing to show that the Photostat copy filed by the respondent no. 2 was proved that it was photographed from the original record by adducing any other oral evidence in this regard. Therefore, the Photostat copy filed by respondent no. 2 cannot be said to be copy of original record in absence of proof of the same, particularly when the petitioner has disputed and emphatically denied the existence of alleged attendance and wage register filed before the Labour Court and it was also alleged to have been fabricated by the respondent no. 2 himself which does not bear the signature of employer. From the perusal of format 'G' of attendance and wage register it is clear that at the foot of format the signatures of employee and employer are essential. The Photostat copies filed by the respondent no. 2 does not bear such signature of employer, therefore, the submission of learned counsel of petitioner in this regard that it is fabricated document, have some substance. In my considered opinion aforesaid Photostat copy can not be treated to be secondary evidence and admissible in evidence as such and accordingly cannot be made basis for recording any finding to establish the relationship of master and servant between the petitioner and the respondent No. 52. Thus the finding recorded by Labour Court in this regard on that basis is wholly misconceived, perverse, erroneous and not sustainable.

56. In this connection it is also necessary to point out that under Section 64 of Evidence Act the provision has been made to the effect that the documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 65 provides the cases in which secondary evidence relating to documents may be given and clearly stipulates that -secondary evidence may be given of the existence, condition or contents of a document in the following cases:-

(a) when the original is shown or appears to be in the possession or power-

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c ) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence;

(g) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c ) and (d), any secondary evidence of the contents of the document is admissible.

In ease (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

57. Thus from a bare reading of the aforesaid provisions contained in Section 65 of Evidence Act it is clear that no secondary evidence of a document is permissible, unless any of the condition mentioned in aforesaid section are satisfied. In this regard a reference can be made to a case decided by Madras High Court in Akottapalli Raghaviah, : (1951)IIMLJ52 . In para 2 of the decision Madras High Court has held as under :

'(2)...................'Under Section 64, Evidence Act the order must be proved by filing an order itself. No secondary evidence of the order is permissible unless the conditions mentioned in Section 65 are satisfied. It is not the case of the prosecution that their action falls within the scope of Section 65, Evidence Act. The evidence of a newspaper in which it was stated that a person was wanted is not sufficient, especially when knowledge or reason to believe has to be proved by prosecution. The case is covered by (he Privy Council ruling in -Iswaramurthi Goundan v. Emperer, reported in . '

58. It is also well settled that before reception of secondary evidence it is necessary that a foundation must be laid for reception of such secondary evidence. In this connection a reference can be made of a decision of Hon'ble Apex Court rendered in Sital Das v. Sant Ram and Ors., : AIR1954SC606 wherein in para 16 of the decision Hon'ble Apex Court has held as under:

'(16) ...If the document produced is a copy, admissible as secondary evidence under Section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (Vide - 'Basant Singh v. Brij Raj Saran Singh , In this case no foundation was laid for reception of secondary evidence under Section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of Section 63. In these circumstances, we must hold that the will alleged to have been executed by, Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration. '

59. Similarly in The Roman Catholic Mission and Anr. v. State of Madras and Anr., : [1966]3SCR283 in para 8 of the decision Hon'ble Apex Court has held as under:

'(8) ...........The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also............. '

60. Thus from the aforesaid discussion, it is clear that before adducing the Photostat copies aforesaid as secondary evidence, none of the conditions existing under Section 65 of Evidence Act were satisfied nor necessary foundation has been laid by the party seeking to adduce them as secondary evidence nor can the copy produced be regarded as secondary evidence within the meaning of Section 63 of the Evidence Act, as such acceptance of such Photostat copies by the Labour Court as secondary evidence is wholly illegal, erroneous and could not be accepted as admissible evidence for the purpose to prove content of the documents, therefore, liable to be excluded from the consideration.

61. Thus on the basis of aforesaid discussions, it is clear that respondent no. 2 has failed to establish employer-employee/master and servant relation with the petitioner and himself. The Photostat copies of attendance and wage register tiled by him is inadmissible in evidence in given tacts and circumstances of the case discussed herein before. No other document or evidence has been adduced in support to establish such relationship. The Photostat copy of coin given by the United Provincial Transport Company-petitioner to customers of his agency, which is different concern bearing different registration having different business could also not be accepted as proof to establish master-servant relationship between the petitioner and the respondent no. 2. Since the respondent no. 2 has come forward with a specific case before the Labour Court that he was Godown Keeper/Helper in the shop/establishment of the petitioner but he could not prove the same by adducing legal and admissible evidence before the Labour Court, therefore, I have no hesitation to hold that the respondent-workman has failed to prove that master and servant or employer and employee relationship was existing between the petitioner and respondent-workman before termination of his services as such. Accordingly the reference in question made by State Government before labour court is incompetent and bad in law on that count. Consequently findings of labour court in this regard is not sustainable at all.

62. Before parting with the issue it is also necessary to deal with the submissions of learned counsel of respondent-workman and decisions relied upon by him. He submitted inter alia that that since the respondent-workman was being engaged through Mates for loading and unloading work of the petitioner's shop and godown, therefore, he would be deemed to be employee of petitioner under broader sweep of description of 'employer' as provided under Section 2 (i) (iv) of U.P. Industrial Disputes Act. Whereas learned counsel for the petitioner Sri Vijai Ratan Agrawal has encountered the aforesaid arguments of Sri Shyam Narain submitting that it is not available to him for the simple reason that this point has never been raised by the respondent at any stage of proceeding and no foundation either before the Labour Court and before this Court also in counter affidavit filed in the writ petition has been laid by the respondent-workman, therefore, this question cannot be permitted to be raised for the first time at the stage of arguments in writ proceeding before this Court. Thus, it is necessary to examine the pleading and other materials placed by respondent-workman the labour court but before such examination is made, I would like to first the case law relied upon by learned counsel for respondent-

63. In Basti Sugar Mills case (supra) a Constitution Bench of Hon'ble Apex Court has considered the controversy in context of reference of an industrial dispute Act under the Uttar Pradesh Industrial Disputes Act, 1947, wherein the appellant Sugar Mills entrusted the work of removal of press mud to a contractor who engaged the respondents therein (contract labour) in connection with that work. The services of the respondents were terminated by the contractor and they claimed that they should be reinstated in the service of the appellant. The Constitution Bench held.

'The -words of the definition of workmen in Section 2(z) to mean 'any person (including an apprentice) employed in any industry to do one skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied' are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the contractor or the management. Unless however, the definition of the word 'employer' included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between 'employer' and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by sub clause (iv) of Section 2 (i). The position thus is; (a) that the respondents are workmen within the meaning of Section 2(z), being person employed in the industry to do manual work for reward, and (b) they were employed by a contractor with whom the appellant-company had contracted in the course of conducting the industry for the execution by the said contractor of the work of removal of pressmud which is ordinarily a part of the industry. It follows therefore, from Section 2(z) read with sub-clause (iv) of Section 2(i) of the Act they are workmen of the appellant-company is their employer. '

64. Although there can be no quarrel with the legal proposition which is now well settled in catena of the decisions of Hon'ble Apex Court, but the facts of the instant case is quite distinct and distinguishable from the facts of the aforesaid case. In the aforesaid case the employee was brought to employment of the employer through the contractor and it was found as a matter of fact that aforesaid contract was sham and camouflage and unreal. Thus employee was held employee of employer, that is appellants company.

65. Similarly in M/s. Bharat Electrical Ltd. case (supra) also as stated herein before, the respondent-workman was found as employee of appellant though he was brought under the employment of the appellant through contractor but the aforesaid contract was found as sham and camouflage and unreal contract. In the aforesaid case the manner and mode of appointment and bringing the workman to the employment of the appellant was found proved as a matter of fact on the basis of materials placed before the labour court. Thus, the facts of the aforesaid case is also distinguishable from the facts of the instant case. Similarly in National Fertilizer Ltd. case (supra) the workman was admittedly brought under the employment of the employer through contractor and having regard to the facts and circumstances of the case, the tribunal on appreciation of evidence on record came to the conclusion that he was employee of the petitioner. In that facts and situation of the case learned Single Judge of this Court on placing reliance upon the decisions rendered by Apex Court referred in the judgment has held that the findings of the labour court holding the respondent no. 3 as employee of the petitioner is justified and action taken by the petitioner by removing the respondent no. 3 was illegal, therefore, the award passed by labour court was maintained to the extent of reinstatement of respondent no. 3 with back wage. The facts of the aforesaid case is also distinguishable from the facts of the instant case hence can be of no assistance to the case of respondent-workman.

66. Thus in view of the aforesaid discussion, it is necessary to examine the facts of the case of respondent-workkman pleaded before the Labour Court in his written statement filed before it, which is already on record as Annexure-2 of the writ petition, wherein it has been stated that the respondent-workman was appointed in the establishment of petitioner as Godown Keeper/Helper on 5.4.1975 and he was continuing as such on the aforesaid post till 6.7.2001. He was paid a sum of Rs. 21107- per month as wage but his services were terminated illegally on 7.7.2001. Before his termination as such he has continuously worked for a period of 240 days. While terminating his services the provisions of Section 6-N of U.P. Industrial Disputes Act was not complied with either by serving him any statutory notice of retrenchment or payment in lieu thereof and retrenchment compensation towards the services rendered by him. Oral evidence adduced by the respondent-workman before Labour Court is also on record as Annexure-8 of the writ petition wherein the same facts have been reiterated by the respondent-workman. From the perusal of written statement as well as statement in chief of respondent-workman recorded before the labour court there is nothing to show that any statement of fact has been made to the effect that the respondent-workman was engaged through the mates and brought to the employment of the employer i.e. petitioner by the mates and i he was folly integrated into the petitioner's establishment as foil time worker and any contract of employer with third person was sham and camouflage rather unreal. There appears no such pleadings and proof before the labour court. The counter affidavit filed in the writ petition also does not indicate that the respondent-workman was engaged through mates as a foil time employee of the petitioner and folly integrated into the employer concern and remained under direct control and supervision of employer till the date of termination of his services contrary to it in para 6 (b) of main counter affidavit filed by respondent-workman it has been specifically stated that it is wrong to alleged that respondent was freelance labourer and was engaged through different mates to work in petitioner's establishment. Although such pleading can not be permitted to be made first time in the writ petition as it involves the adjudication of factual question by appreciation of evidence which cannot be appropriately appreciated in such proceedings. The phenomena of relationship of master and servant and employer and employee as indicated earlier is pure question of fact. Whether the contract entered into between the employer and contractor is sham or camouflage or unreal or genuine or bonafide is also a question of fact is to be decided by the Labour Court on the basis of pleadings and evidence adduced before it. The aforesaid relationship cannot be established on the basis of pure legal fiction and assumption and the same cannot be decided before this Court first time in writ proceeding without any factual foundation for the same. However it is for the Industrial Tribunal or Labour Court to determine the question of relationship of master and servant or employer and employee by applying various relevant factors as laid down from time to time by Hon'ble Apex Court and High Courts but same cannot be decided first time in the writ proceeding for reasons indicated herein before. Thus, the submission of learned counsel for respondent-workman that respondent no. 2 should be deemed to be employee of petitioner under the broader sweep of definition of 'employer' given under Section 2(i) (iv) of U.P. Industrial Disputes Act, 1947 in my considered opinion is wholly misconceived and not tenable at all. Accordingly the point raised by Sri Shyam Narain in this regard during the course of hearing and arguments first time in the writ petition is without any factual foundation and cannot be permitted to be raised first time during the course of argument in the writ petition in question.

67. Thus in view of discussions made herein before, I am of considered opinion that the respondent-workman has failed to discharge his burden of proof to establish relationship between him and petitioner as of employee and employer and master and servant. The Photostat copies of attendance and wage register were not admissible in evidence as secondary evidence for the reasons given herein before. Similarly the Photostat copy of silver coin is also not admissible in evidence for the same reasons and absence of proof of identity of recipients were liable to be excluded from consideration to establish such master and servant relationship between the petitioner and respondent-workman, therefore, the findings of labour court based on inadmissible evidence and irrelevant materials are wholly erroneous, misconceived and perverse and cannot be sustained and liable to be quashed. Accordingly same are hereby quashed. Consequently the reference in question is also held to be incompetent and bad in law.

68. Now the next question arises for consideration as to whether the Labour Court was justified in given facts and circumstances of the case to grant the relief of full back wage to the respondent no. 2 while reinstating him with continuity in service? In this regard it is necessary to point out that since I have taken the view that respondent-workman has failed to establish the relationship of master and servant or employer and employee between the petitioner and himself, holding that reference was incompetent and bad in law, consequently findings of labour court is not sustainable in the eyes of law and unless such relationship is found established according to law, no further question would arise to be considered as to whether the termination of service of respondent-workman was according to law or not. Accordingly question of consequential relief of reinstatement with full back wage or any other quantum of back wage as a result of setting aside the order of termination of respondent-workman does not necessarily arise to be considered in given facts and circumstances of the case.

69. Similarly another submission made by learned counsel for the petitioner that the establishment has been closed down after award of the Labour Court and before its publication and the petitioner has informed about the closure of establishment to the concerned officer of Labour Department of Government of Uttar Pradesh and on the basis of aforesaid facts the learned counsel for the petitioner has submitted that in case the establishment would have been closed down before the award of Labour Court, the matter would have been brought to the notice of Labour Court and in such a situation the Labour Court would have not possibly made the award granting relief of reinstatement of respondent-workman. Although the fact of closure of establishment has been denied and disputed by the respondent-workman but having regard to the facts and circumstances of the case, since the question requires investigation of facts and appreciation of view whereby the award of Labour Court has been held to be not sustainable, therefore, at the moment this question does not arise to be decided either before this Court or before any appropriate forum under Industrial Disputes Act but the same shall be left open for the parties to agitate at appropriate time and forum as and when occasion would arise.

70. Thus in view of foregoing discussions and observations made herein above, the impugned award passed by Labour Court in Adjudication Case no. 37 of 2002 on 19.01.2004 published on 24.08.2004 is hereby quashed and the writ petition succeeds and stands allowed.

71. There shall be no order as to costs.

Subject	Civil
Court	Allahabad High Court
Decided On	Jul-26-2005
Case Number	Civil Misc. Writ Petition No. 45547 of 2004
Judge	Sabhajeet Yadav, J.
Reported in	[2006(107)FLR495]
Acts	Uttar Pradesh Industrial Disputes Act, 1947 - Sections 2, 6N, 9, 12, 20(1), 23, 25, 29, 30, 32, 35 and 40; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951; Uttar Pradesh Land Revenue Act, 1901; Contract Labour (Regulation and Abolition) Act, 1970 - Sections 10 and 10(1); Factories Act; Uttar Pradesh Dookan Aur Vinijya Adhishthan Adhiniyam, 1962 - Sections 32 and 33; Evidence Act - Sections 62, 63, 64, 65, 66 and 114; Constitution of India - Articles 38, 39, 42, 43, 226 and 345; Contract Labour (Regulation and Abolition) Rules - Rule 18 and 18(1)
Appellant	United Provincial Transport Agency (Through Its Partner Sri S.P. Gulati)
Respondent	Presiding Officer, Labour Court and Sri Pyarey Lal S/O Late Sri Ram Lal
Appellant Advocate	Vijai Agrawal and ;Piyush Bhargava, Advs.
Respondent Advocate	Shyam Narain and ;Sudhanshu Narain, Advs. and ;S.C.
Disposition	Petition allowed
Cases Referred	The Roman Catholic Mission and Anr. v. State of Madras and Anr.

United Provincial Transport Agency (Through Its Partner Sri S.P. Gulati) Vs. Presiding Officer, Labour Court and Sri Pyarey Lal S/O Late Sri Ram Lal - Court Judgment

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