- (1.) Heard Sri P.K. Sinha, learned counsel for the petitioner, Sri Alok Sharma, learned Standing Counsel for respondent nos. 1 and 2 and Sri Alok Kumar Yadav, learned counsel for respondent no.3.
(2.) Learned counsel for the petitioner submits as under: (i) Impugned award has been passed without considering the relevant materials on record establishing the respondent no. 3 as a contract labour. (ii) The finding of continued service of the respondent no.3 from 1.12.1984 to 12.1.1991 has been recorded by the respondent no. 2 merely on the basis of an alleged certificate of one Sri P.C. Tripathi, Deputy General Manager (Engineering), who was neither competent to issue such certificate nor this certificate was issued by the personnel department which is the competent department. (iii) The respondent no. 3 has not completed continuous service of 240 days. (iv) The respondent no. 3 was a contract labour of one Sri Om Prakash Yadav and subsequently he was a contract labour of one Sri Dinesh Giri who used to supply labour on contract basis to the petitioner. (v) None of the factors as propounded by Hon'ble Supreme Court in the case of Balwant Rai Saluja and another Vs. India AIR(Ltd) and others, 2014 143 FLR 1 para 61 with regard to employer- employee relationship, have been considered by the respondent no. 2 while passing the impugned award and as such the impugned award is wholly invalid. (vi) The Paper no. 14B(1) which is the office order in which inadvertently, the name of the respondent no. 3 was mentioned, was amended on the very next day, i.e. 3rd June, 1986, and his name appearing in the said paper at serial no. 7 was deleted. Thus, this paper does not help the respondent no. 3 in any way. (vii) Mere mentioning of name of the respondent no. 3 in the attendance register does not establish that the respondent no. 3 was an employee of the petitioner. The fact is that the respondent no. 3 was a contract labour and for that reason, against his name in the attendance register the words "C/L" has been mentioned which means contract labour and not the casual labour. At one or two places, the words "casual labour" was inadvertently mentioned in the attendance register, and therefore, no inference in favour of the respondent no. 3 should have been drawn. (viii) Copy of identity card as produced by the respondent no. 3 was forged, inasmuch as the personal number in the said identity card was not mentioned.
(3.) Learned counsel for the petitioner has relied upon the judgment of this Court in the case of M/s Central Distillery and Breweries Ltd. Vs. Labour Court and another, 2012 135 FLR 871 para 3 in which it has been held that salary certificate is not conclusive proof of employment in the establishment. He relied upon a Single Bench judgment in the case of U.P. Projects Corporation Limited and others Vs. Presiding Officer, Labour Court-I, U.P. Kanpur and others, 2014 4 UPLBEC 3306 para 8 to contend that identity card is not conclusive proof of appointment. He also relied on the judgment of Bombay High Court in the case of Bhartiya Kamgar Sena Vs. Udhe India Ltd. and another, 2008 116 FLR 457 para 20 in which it is mentioned that a register maintained for the purpose of attendance of workmen by itself cannot be a factor which would disclose complete control by the company over these workmen. He further relied on the judgment of Hon'ble Supreme Court in the case of Chief Engineer, Ranjit Sagar Dam and another Vs. Sham Lal, 2006 2 UPLBEC 2015 to submit that initial burden of proof of completion of 240 days continuous service is on the workman.;