Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 424 (ALL)

State of U. P. v. Gulrej Ahmad and Another

2013-02-05

TARUN AGARWALA

body2013
Hon'ble Tarun Agarwala,J. This is second round of litigation. The petitioner has challenged the validity and legality of the award passed by the labour court directing reinstatement of the petitioner with 50 percent back wages. The facts leading to the filing of the writ petition is, that the respondent workman alleged that he was appointed as an Engraver in the Government Press at Allahabad on 10th December, 1991 and continued to work till 1st of September, 2004. It was alleged that he worked for almost 13 years without any break in service and that he was arbitrarily removed without complying with the provisions of Section 6N of the U.P. Industrial Dispute Act, 1947. The respondents, accordingly prayed that he was liable to be reinstated with continuity of service and with full back wages. The petitioner in the written statement has specifically taken a stand that the post of Engraver became vacant and was never filled up and that the respondent workman in question was never employed either as a regular employee or on a muster roll or on daily wage basis and that the respondent workman was running a shop of engraving and was doing his private business and that in exigency of work, the petitioner gave him work orders, which he executed it at his shop. However for certain work, on account of security reasons, he was allowed to do the said work in the foundry located inside the Government Press. The petitioners further took a stand that the respondent workman was paid for the work order and that he was never paid wages as a regular employee. Initially, the labour court given an award holding that the respondent workman was not entitled to any relief. The workman, being aggrieved, filed a writ petition, which was allowed and the matter was remitted again to the labour court to decide the matter afresh. The labour court after considering the material evidence on record, has now given a specific finding to the effect that the respondent workman was actually engaged as an Engraver by the Government Press and that he was working in that capacity for almost 13 years before he was arbitrarily removed. The labour court has also given a finding that the workman had worked for more than 240 days in a calender year and that retrenchment compensation etc. The labour court has also given a finding that the workman had worked for more than 240 days in a calender year and that retrenchment compensation etc. as specified under Section 6N of the U.P. Industrial Dispute Act, 1947 was not given nor paid before the respondent workman was discharged from the service of the Government Press. The labour court rejected the stand of the employer, namely, that he was employed on a contract basis. The labour court found that the photocopies of the work orders, which were issued to the respondent workman could not be taken into consideration as it was not admissible in evidence, since the original copies were not produced. The labour court further relied upon a certificate dated 14th February, 2003 before the Deputy Director indicating that the respondent workman had worked from 1991 to 2003 in the foundry of the Government Press. On these findings, the labour court held that the order of termination passed by the employer was wholly illegal and accordingly directed the reinstatement with 50 per cent back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition. Heard the learned counsel for the parties. The learned counsel for the petitioner has pressed upon the fact that the evidence filed by the employers were not considered by the labour court and that the labour Court, in a very cursory manner, has rejected the evidence on the pretext that the original document were not filed, when in fact, photocopies filed by the employer was duly proved by a witness. The learned counsel further submitted that the Deputy Director had issued another certificate on 11th January, 2005 denying the issuance of the earlier certificate of 2003. The learned counsel submitted that this certificate was never considered by the labour court. Having heard the learned counsel for the parties at some length, this Court finds that the petitioner is not entitled for any relief. The Court is constrained to observe that the petitioners have completely failed in proving the allegations made by them in their statements for the reasons stated hereunder. In the first instance, the Court finds that the petitioner has categorically come out with the stand that the respondent workman was never employed by them and he was only employed on work basis as per the work orders issued to him from time to time. In the first instance, the Court finds that the petitioner has categorically come out with the stand that the respondent workman was never employed by them and he was only employed on work basis as per the work orders issued to him from time to time. In support of this stand, the petitioner's filed list 13- B which included various work orders issued to the workman. The Court finds that only photocopies of the work orders had been filed. A witness has deposed that the originals are available with the employer. The law is very clear. Under Evidence Act, photocopy of the original document is permissible to be led as secondary evidence provided the original document is lost. In the instant case, the witness has established that the original document is still with the employers. This Court fails to understand as to under what compulsion, the employers were keeping the original with them and not producing the same before the labour court as evidence. It is settled law that photocopies of a document is not legally admissible in evidence, unless it is specifically contended that the originals are not available or are lost. Consequently, the labour court was justified in rejecting the photocopies of the work orders as not admissible in evidence. The Court finds that no effort was made by the employer to produce the evidence to the extent that payments pursuant to the work orders were given and paid to the workman through various vouchers for which an appropriate receipt was given by the workman. No effort was made by the employers to prove the signature of the workman in the so-called pre-receipted vouchers or the work orders given by him. The Court finds that the employers miserably failed to prove their stand, namely, that the workman respondent was not employed by them and that he was only given work orders, which he executed on payment basis. On the other hand, the Deputy Director in his evidence has admitted that by various work orders, the respondent workman was allowed to work in the foundry. Evidence has come to the fore that the respondent workman continued to work over a considerable period of time in the foundry. A Government Press is a secured place, where outsider are not permitted to enter for security reason except the workers, who are employed by the Government Press. Evidence has come to the fore that the respondent workman continued to work over a considerable period of time in the foundry. A Government Press is a secured place, where outsider are not permitted to enter for security reason except the workers, who are employed by the Government Press. The Government Press admits that the respondent workman was allowed to execute the work in foundry raises a presumption that the petitioner had engaged the respondent as a workman. This view of the Court is fortified by the certificate dated 14.2.2003 issued by the Deputy Director of the Government Press indicating that the respondent had worked as an Engraver from 1991 to 2003 and that he was done various kind of works in the foundry of the Government Press. The Court finds that no effort was made by the petitioner to produce the Deputy Directer before the labour court as a witness to deny the execution of this certificate. The Deputy Director did not have the strength to appear before the labour court and deny his signatures on the said certificates. The learned counsel, however, made a submission that the Deputy Director had issued another certificate of 2005 denying the execution of any certificate issued by him in the year 2003. The Court is constrained to observe that this certificate has been obtained by the petitioner to save their neck. This certificate has been obtained or rather procured, which can not be considered at this stage for the reasons that the Court finds that this certificate of 2005 was never filed before the labour court and has been filed for the first time before this Court in a writ jurisdiction without seeking liberty to file this evidence as an additional evidence. The Court is of the opinion that only the evidence which was filed before the labour court could be considered in a writ jurisdiction. In the light of the aforesaid, the Court is of the opinion that the petitioner miserably failed to prove their stand as adopted in their written statement. On the other hand, the labour court rightly came to the conclusion that the respondent workman had worked as an Engraver in the petitioners' Press from 1991 to 2003 and that he was arbitrarily removed without complying with the provision of 6-N of U.P Industrial Disputes Act, 1947. On the other hand, the labour court rightly came to the conclusion that the respondent workman had worked as an Engraver in the petitioners' Press from 1991 to 2003 and that he was arbitrarily removed without complying with the provision of 6-N of U.P Industrial Disputes Act, 1947. The labour court in the facts and circumstances of the case was justified in reinstating the workman with continuity of service and with 50 per cent back wages. The Court does not find error in the order. The writ petition fails and is dismissed. The Court finds that pursuant to an interim order, a sum of Rs. 3,00,000 (Three lacs) was deposited by the petitioner towards 50 percent of the back wages. Since the writ petition is being dismissed, it would be open to the respondents workman to withdraw this amount upon an application being filed before the Labour Court. ……………………………….