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 fr om them as per terms settled with the transporters and the petitioner agency the work of loading and unoading 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 not exercise any control over them. 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. 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 filed his written statement before the Labour Court, Allahabad stating that he was appointed on a post of godown keeper/helper on 5.4.1975 and had continuously worked till 6.7.2001 and was drawing wage amounting Rs.2110/- 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. 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) and (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) and (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 and 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.
(3.) 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. 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 their 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. 1 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.;