# M/s Soni Photostat Centre v. Basudev Gupta and another

- **Citation:** (2004) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-16
- **Case number:** Civil Masc. Writ Petition No.40389 of 1999
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-soni-photostat-centre-v-basudev-gupta-and-another-40256
- **Pages:** 6

## Headnote

Constitution of India Article 226-New
plea- not raised before Tribunal-whether
can be raised for first time-in writ
petition?-plea that petitioner is not an
industry-is a pure question of law-hence,
can be raised.

Held: Para 20

The question whether the establishment
of the petitioner comes within the
definition of industry or not, is a pure
question of law and can be raised in the
writ petition as it goes to the very root of
jurisdiction of the labour court.
Case law discussed:
AIR 1978 SC 548
2002 (94) FLR 622
1996 FLR
1979 (39) FLR 70
2002 Vol. 1 UPLBEC 319

## Text

http:\\allahabadhighcourt.nic.in
1 All] M/s Soni Photostat Centre V. Basudev Gupta and another
17
4. Accordingly, writ petition is
dismissed. However, petitioners may file
regular civil suit before civil court seeking
declaration
of
their
title
alongwith
ancillary reliefs including application for
temporary injunction. If such a suit is
filed the same must be decided on merit
and on the basis of evidence adduced
therein without taking into consideration
findings recorded in the impugned order.

In-fact for such a suit no permission
by the Court is necessary.

5. For a period of four months
further proceedings in pursuance of
impugned
order
dated
16.10.2003
declaring
vacancy
passed
by
R.C.&E.O./A.D.M.
(Civil
Supplies),
Varanasi in case no.116 of 2001 shall
remain stayed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Masc. Writ Petition No.40389 of 1999

M/s Soni Photostat Centre ...Petitioner
Versus
Basudev Gupta and another ...Respondents

Counsel for the Petitioner:
Sri M.B. Saxena

Counsel for the Respondents:
Sri U.N. Sharma
Sri R.S. Prasad
Sri Aditya Kumar Yadav
S.C.

Constitution of India Article 226-New
plea- not raised before Tribunal-whether
can be raised for first time-in writ
petition?-plea that petitioner is not an
industry-is a pure question of law-hence,
can be raised.

Held: Para 20

The question whether the establishment
of the petitioner comes within the
definition of industry or not, is a pure
question of law and can be raised in the
writ petition as it goes to the very root of
jurisdiction of the labour court.
Case law discussed:
AIR 1978 SC 548
2002 (94) FLR 622
1996 FLR
1979 (39) FLR 70
2002 Vol. 1 UPLBEC 319

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard the counsel for the parties and
perused the record.

2. The petitioner has filed the
present writ petition challenging the
impugned award dated 26.3.1999 passed
by labour court in Adjudication Case
No.8 of 1998, Annexure-9 to the writ
petition treating respondent no.1 with
continuity in service and back wages from
the date of his termination dated 1.6.1995.

3. The brief facts of the case as they
appear from record are that the petitioner
has a Photostat machine installed in a
room of 12 x 8 feet. The shop was
registered with the Director of Industries
having its Registration No.SSI-53612.
There are two electrostat machines in the
shop. One of the machines is used for job
work and another is used for display to
secure orders for sale of the electrostat
machine on commission. It is alleged that
the workman required an experience
certificate for applying for job else where
and the same was given to him on
8.12.1990 by the proprietor of the shop.
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
18
Thereafter the workman worked in the
petitioner's establishment as helper till
10.12.1990. The petitioner alleges that
after taking experience certificate, he left
the job himself for better prospects.

4. Respondent no.1 raised an
industrial dispute before the Regional
Conciliation
Officer,
Varanasi.
On
conciliation proceedings having failed,
the following reference was made by the
State Government in exercise of powers
under Section 4-K of the U.P.Industrial
Disputes Act, 1947:-

"KIYA SEWAYOJKON DWARA APNE
SHRAMIK BASUDEV GUPTA PUTRA
SHRI
BACHNU
GUPTA
KEE
SEWAYEN
DINANK
1.6.1995
SE
SAMAPT KIYA JANA UCHIT TATHA/
ATHWA VAIDHANIK HAI? YADI
NAHE TO SAMBANDHIT SHRAMIK
KIYA HITLABH PANE KA ADHIKARI
HAI."

5. The contention of the counsel for
the petitioner is that the proprietor himself
carries
on
the
business
as
the
establishment is not a big enough to
employ more than one person as helper.
He engaged respondent no.1 as electrostat
operator/ helper in July 1981 who worked
in his establishment till 10.12.1990. After
getting the experience certificate, he left
petitioner's
employment
for
better
prospects. Thereafter one Rajesh Kumar
worked with the petitioner as helper till
October,
1998.
Subsequently
one
Surendra Kumar worked as helper till
1.9.1999 and left the job when he got
employment in Jal Nigam and thereafter
Chandra Kant Misra was working as
helper.

6. Before the labour court the case
of respondent no.1 was that he was
working in petitioner's establishment
since July, 1981 as electrostat machine
operator and was getting salary of
Rs.950/- per month. His salary was
stopped since 1993 due to financial
problems faced by the petitioner but he
continued to work as electrostat operator
till 1995 without getting any salary from
the petitioner and did not raise any
objection.

7. The counsel for the respondent
no.1 has further drawn the attention of the
Court to the evidence of the employer
wherein it has been stated that the
petitioner had neither filed the registration
certificate before the labour court nor the
attendance register of the workman was
maintained by him and the petitioner has
also not filed any receipt regarding
payment of wages to the workman.

8. Counsel for the petitioner has
argued that the petitioner has a very small
shop for his livelihood and the same does
not come within the purview of an
industry and the whole case set up by the
answering respondent before the labour
court is incorrect and unbelievable. He
has relied upon para 111 of the decision
of the Hon'ble Supreme Court in
Bangalore Water Supply and Sewerage
Board Vs. Rajappa and others, AIR
1978 Supreme Court 548, which is as
under:-

"A single lawyer, a rural medical
practitioner or urban doctor with a little
assistant and/or menial servant may ply
a profession but may not be said to run
an industry. That is not because the
employee does not make a contribution
nor because the profession is too high to
http:\\allahabadhighcourt.nic.in
1 All] M/s Soni Photostat Centre V. Basudev Gupta and another
19
be classified as a trade or industry with its
commercial connotations but because
there is nothing like organized labour
in such employment. The image of
industry or even quasi industry is one
of a plurality of workmen, not an
isolated or single little assistant or
attendant. The latter category is more
or less like personal avocation for
livelihood taking some paid or part
time from another. The whole purpose
of the Industrial Disputes Act is to focus
on resolution of industrial disputes and
regulation of industrial relations and not
to meddle with every little carpenter in
a village or blacksmith in a town who
sits with his son or assistant to work for
the customers who trek in. The
ordinary spectacle of a cobbler and his
assistant or a cycle repair with a helper,
we come across in the pavements of
cities and towns, repels the idea of
industry and industrial dispute. For
this reason, which applies all along the
line,
to
small
professions,
petty
handicraft men, domestic servants and
the like, the solicitor or doctor or rural
engineer, even like the butcher, the
baker and the candle stick maker, with
an assistant or without, does not fall
within the definition of industry."

9. The labour court by the impugned
award held that the petitioner was a shop
keeper and his establishment was duly
registered with the Director of Industries.
He had neither produced the attendance
register as required to be maintained
under Section 32 read with Rule 18 (1) (a)
of
the
U.P.
Dookan
Aur
Vanijya
Adhisthan Adhiniyam, 1962 nor produced
Rajesh Kumar who had worked as helper
with the petitioner to show that he was
working in petitioner's establishment after
the respondent-workman had left the job.
The labour court further held that the
burden of proof is on the petitioner to
establish that the workman had left the
job himself and as no evidence had been
filed by the petitioner regarding closure of
the establishment. The workman was
granted the relief of reinstatement and
continuity of service with full back
wages.

10. The Hon'ble Supreme Court in
Range
Forest
Officer
Vs.
S.T.
Handimani, 2002 (94) FLR 622, held as
under:-

"The Tribunal was not right in
placing the onus on the management
without first determining on the basis of
cogent evidence that the respondent had
worked for more than 240 days in a year
preceding his termination. It was the case
of the claimant that he had so worked but
this claim was denied by the appellant. It
was then for the claimant to lead evidence
to show that he had in fact worked for 240
days
in
the
year
preceding
his
termination. Filing of an affidavit is only
his own statement in his favour and that
cannot be regarded as sufficient evidence
for any court or Tribunal to come to the
conclusion that as workman had, in fact,
worked for 240 days in a year. No proof
of receipt or salary or wages for 240 days
or order or record of appointment or
engagement for this period was produced
by the workman. On this ground alone,
the award is liable to be set aside."

11. He further relied upon the
decision of this Court in Meritec India
Ltd. Vs. State of U.P. and others, 1996
FLR. This Court has held as under:-

"Section 5-C (1) of the Act provides
that subject to any rules that may be made
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
20
in this behalf, a Labour Court shall follow
such procedure as it may think fit. It is,
therefore, clear that the discretion of the
Court is not absolute. It is circumscribed
by Rules, if any. We have, therefore, to
look to the U.P.Industrial Disputes Rules
of 1957. Rule 12 provide that where the
State Government refers an industrial
dispute for adjudication to a Labour Court
within two weeks of the date of receipt of
the order of reference, the workmen and
the employers involved in the dispute
shall file before the Labour Court a
statement of the demands relating to the
issues as are included in the order of
reference. Sub-rule (8) provides that the
written statement filed by the Union of
the workman shall state the grounds upon
which the claim of the concerned
workmen is based and the written
statement shall be accompanied by an
affidavit in which the statement contained
in the written statement should be sworn
to. Sub-rule (9) states that if the statement
accompanied by the affidavit of the Union
or the workman is not repudiated by the
employer, the Labour Court shall presume
the contents of the affidavit to be true and
make an award accepting the case stated
in the written statement.

From a combined reading of Section
5-C (1) and the aforementioned sub-rules
of Rule 12 it is apparent that it is
imperative upon a workman to file an
affidavit in support of his written
statement. This affidavit constitutes the
preliminary evidence. If the employer
does not caré to controvert the averments
made in the affidavit nothing further need
be proved or done by the workman. The
Labour Court is duty bound to accept the
averments contained in the affidavit and
give its decision or award accepting the
averments made in the affidavit as
correct. These provisions indicate that the
burden of proving the case referred to the
Labour Court for adjudication by the State
Government lies on the workman. The
distinction between a burden to proof and
the onus of proof is well known. It is trite
that the burden of proof never shits. It is
the onus which keeps on shifting from
stage to stage. The Labour Court patently
erred in holding that keeping in view the
terms of the reference made by the State
Government the burden of proof lay upon
the employer.

The matter can be looked at from
another angle, which party will fall if the
evidence is not led before the labour court
in proceedings in a reference made to it
for
adjudication
by
the
State
Government? The obvious answer is that
the workman will fail. Here the reference
was made by the State Government at the
instance of the workman and for the
benefit of the workman. In the absence of
any evidence led by or on behalf of the
workman the reference is bound to be
answered by the court against the
workman. In such a situation it is not
necessary for the employers to lead any
evidence at all. This matter was dealt with
by
the
Apex
Court
in
Shankar
Chaudhary Vs. Britannnia Biscuits Co.
Ltd.. In paragraph 30 the Court held that
the Labour Court or the Industrial
Tribunal have all the trappings of a court.
In paragraph 31 it held that any party
appearing before a Labour Court or
Industrial Tribunal must make a claim or
demur the claim of the other side and
when there is a burden upon it to prove or
establish the fact so as to invite a decision
in its favour, it has to lead evidence. The
obligation to lead evidence to establish an
allegation made by a party is on the party
making the allegation. The test would be,
http:\\allahabadhighcourt.nic.in
1 All] M/s Soni Photostat Centre V. Basudev Gupta and another
21
who would fail if no evidence is led. It
must seek an opportunity to lead
evidence."

12. Similar view has been taken by
the Apex Court in V.K. Raj Industries
Vs. Labour Court and others, 1979(39)
FLR 70 to the effect as under:-

"The
proceedings
before
the
Industrial Court are judicial in nature even
though the Indian Evidence Act does not
apply to the proceedings but the principle
underlying the said Act is applicable to
the proceeding before the Industrial
Court. In a judicial proceeding, if no
evidence
is
produced
the
party
challenging the validity of the order must
fail. It is well settled that if a party
challenges the legality of an order, the
burden lies upon him to prove illegality of
the order and if no evidence is produced
the party invoking jurisdiction of the court
must fail. Whenever, a workman raises a
dispute challenging the validity of the
termination of service it is imperative for
him to file written statement before the
Industrial Court setting out grounds on
which the order is challenged and he must
also produce evidence to prove his case. If
the workman fails to appear or to file
written statement or produce evidence the
dispute
referred
to
by
the
State
Government cannot be answered in
favour of the workman and he would not
be entitled to any relief."

13. From the aforesaid settled
position of law, it emerges that the burden
of proof is on the workman or on the
person, who raises the dispute and not
upon the employer and that the onus will
be shifted on the employer only when the
burden of proof is being discharged by the
workman and if burden is not discharged
by him, his case must fail.

14. In the instant case the workman
has not filed any documentary evidence
nor
has
filed
any
application
for
summoning
Rajesh
Kumar
or
the
attendance register from the employer.
The petitioner could not lead any negative
evidence to prove that after taking the
experience certificate, respondent no.1
had
himself
left
the
job
to
get
employment elsewhere. How attendance
register
of
an
employee
can
be
maintained, if he is not in job? How could
he produce Rajesh Kumar, who had left
the job in the year 1988? The employer
had candidly admitted that he had not
maintained the attendance register, then
how he was expected to produce the
attendance register.

15. The labour court has committed
an error on the face of record in shifting
the burden of proof on the petitioner. The
petitioner had filed documents, such as
certificate of Director of Industries,
Certificate issued by the Sales-Tax,
Balance for the year 1993-94, Income
Return and day-book for the relevant
year. Since Rajesh Kumar had already left
the job, his where about was not known,
otherwise he could have called him to
give evidence. The contention of the
petitioner has force.

16. The contention of the respondent
is that the labour court held that the
employer
deliberately
retained
the
attendance register as required to maintain
under Section 32 read with Rule 18 (1)(a)
of Dookan Aur Vanijya Adhisthan
Adhiniyam, 1962, that the employerpetitioner has failed to establish that the
workman has not performed his duties
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
22
and prior to termination of service of the
workman that no notice or opportunity or
any retrenchment compensation has been
awarded and as such the termination order
is legal and accordingly is misconceived.

17. The establishment does not
employ organized labour and is rendering
service. The sale of Photostat machines is
done by the proprietor himself with the
help of a helper/assistant. There is no
evidence plurality of employee i.e. that
two or more persons are employed. A
small shop is not required under the
Industries Act, 1951is not required to
maintain the attendance register having
only an employee.

18. In the instant case, the employer
was
not
duty
bound
to
maintain
attendance register and other documents
in view of the provisions of the
Establishment
Act.
There
was
no
mandatory requirement to maintain all the
documents. From the entries made in the
documents submitted by the petitioner
such as day-book and the balance-sheet,
the labour court could have easily seen
whether
the
respondent-workman
abandoned employment after taking the
experience certificate or that he had been
working in petitioner's establishment, as
claimed by him. The very small shops and
commercial establishments are exempted
under
the
Shops
and
Commercial
Establishment Act. From the facts of the
case, it is evident that the work was done
by the proprietor himself with the helper.
There is no evidence on record that the
establishment of the petitioner is big and a
number of employees are employed in the
shop. The labour court has not looked into
the facts stated above and the adverse
inference drawn by him is misconceived.

19. In the end the counsel for the
respondents has relied upon a Division
Bench of this Court in Rakesh Kumar Vs.
U.P. State Public Service Tribunal and
others, 2002 Vol. 1 UPLBEC 319 and has
submitted that the plea that the petitioner
is not a industry, was not raised before the
Tribunal, it is not open to raise a new plea
for the first time in the writ petition.

20. The question whether the
establishment of the petitioner comes
within the definition of industry or not, is
a pure question of law and can be raised
in the writ petition as it goes to the very
root of jurisdiction of the labour court.

21. The findings of the labour court
that the petitioner is an industry and the
order of termination of respondent is
illegal and ordered for reinstatement with
back wages, is illegal and perverse and is
liable to be set aside, as such the relief of
reinstatement of the respondent-workman
could not have been granted.

22. For the reasons stated above, the
writ petition is allowed and the impugned
order dated 26.3.1999 is set aside. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 39331 of 2003

R.P.N. Tewari

...Petitioner
Versus
State of U.P. and others ...Respondents