# Rama Kant Misra v. C/m, Badri Nath Intermediate College, Allahabad & others

- **Citation:** (2005) 2 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-26
- **Case number:** Civil Misc. Writ Petition No. 45547 of 2004
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-kant-misra-v-c-m-badri-nath-intermediate-college-allahabad-others-40629
- **Pages:** 35

## Headnote

Indian Evidence Act 1888-Section-62Secondary
evidence-workman
filed
Photocopy-employer despite of direction
taken plea the very existence of such
register-in as much as the engagement
of workman-rather than-the driver of the
truck
itself
engaged
the
freelance
labourer-labour court neither called for
inspection
report,
nor
the
Original
documents produced for comparisonadverse inference drawn against the firm
can not survive. Finding of Labour Court
based on inadmissible evidence and
irrelevant
materials-held-wholly
erroneous, misconsidered and perverse.

Held: Para 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
2 All] Rama Kant Misra V. C/m, Badri Nath Intermediate College, Allahabad & others 743
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.
Case law discussed:
1973 Lab.I.C. 398
1976 Lab.IC. 202
AIR 1967 SC-884
1977 (Vol.3) SCR 678
1983 (2) SCC-33
2001 J.T. (4) SC-145
AIR 1964 SC-355
2003 (98) FLR 826
AIR 2004 SC-1639
AIR 1955 SC-404
AIR 1957 SC-264
1964 (2) LLJ 633
AIR 1970 SC-66
1974 (3) SCC-498
AIR 1978 SC-1410
1983 (4) SCC 464
AIR 1984 SC-23
AIR 1992 SC-1452
1996 (3) SCC-267
2000 (4) SCC-245
2001 (3) SCC-36
AIR 2001 SC-3527
1997 (9) SCC-377
1974 (1) SCC-596
2003 (7) J.J. SC-95
AIR 1992 SC-457
JT 2002 (4) SC-115
AIR 1933 P.C.-87
AIR 1967 SC-450
JT 2003 (6) SC-14
AIR 1953 Mad. 780
AIR 1954 SC-606
AIR 1966 SC-1457

## Text

_Characters 0–39,662 of 118,070. This is a partial read: ask again with offset=39662 for what follows._

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
742
available in feeder cadre, then necessary
adjustment would be made .

Now taking the case in hand it is
reflected
that
Deputy
Director
of
Education in the present case at no point
of time has adverted to all these aspects of
the matter that there was existing
Government Order which covered the
field of reservation in the matter of
promotion and there was an exiting roster.
In the present case as Deputy Director of
Eduction has not undertaken any exercise
while directing promotion of Rama Kant
Mishra whereas Deputy Director of
Education was enjoined upon to see as to
whether post in question was reserved for
Scheduled Caste/Scheduled Tribes or not.
As no exercise whatsoever has been done
in the present case as such entire
proceedings undertaken by the Deputy
Director of Education is clearly vitiated
and is unsustainable.

25. Consequently, writ petition filed
by Management is allowed and two writ
petitions filed by Ramakant Mishra are
dismissed. Joint Director of Education,
Allahabad is directed to decide the matter
afresh, after providing opportunity to
Management as well as Sri Rama Kant
Mishra.

No orders as to cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2006

BEFORE
THEHON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 45547 of 2004

M/s United Provincial Transport Agency,
Allahabad

...Petitioner
Versus
Presiding Officer, Labour Court, U.P.,
Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri Vijay Agrawal
Sri Piyush Bhargava

Counsel for the Respondents:
Sri Shyam Narain
Sri Sudhanshu Narain
S.C.

Indian Evidence Act 1888-Section-62Secondary
evidence-workman
filed
Photocopy-employer despite of direction
taken plea the very existence of such
register-in as much as the engagement
of workman-rather than-the driver of the
truck
itself
engaged
the
freelance
labourer-labour court neither called for
inspection
report,
nor
the
Original
documents produced for comparisonadverse inference drawn against the firm
can not survive. Finding of Labour Court
based on inadmissible evidence and
irrelevant
materials-held-wholly
erroneous, misconsidered and perverse.

Held: Para 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
2 All] Rama Kant Misra V. C/m, Badri Nath Intermediate College, Allahabad & others 743
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.
Case law discussed:
1973 Lab.I.C. 398
1976 Lab.IC. 202
AIR 1967 SC-884
1977 (Vol.3) SCR 678
1983 (2) SCC-33
2001 J.T. (4) SC-145
AIR 1964 SC-355
2003 (98) FLR 826
AIR 2004 SC-1639
AIR 1955 SC-404
AIR 1957 SC-264
1964 (2) LLJ 633
AIR 1970 SC-66
1974 (3) SCC-498
AIR 1978 SC-1410
1983 (4) SCC 464
AIR 1984 SC-23
AIR 1992 SC-1452
1996 (3) SCC-267
2000 (4) SCC-245
2001 (3) SCC-36
AIR 2001 SC-3527
1997 (9) SCC-377
1974 (1) SCC-596
2003 (7) J.J. SC-95
AIR 1992 SC-457
JT 2002 (4) SC-115
AIR 1933 P.C.-87
AIR 1967 SC-450
JT 2003 (6) SC-14
AIR 1953 Mad. 780
AIR 1954 SC-606
AIR 1966 SC-1457

(Delivered by Hon'ble Sabhajeet Yadav, J.)

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 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
744
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 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
2 All] M/s United Provincial Transport Co. V. P.O., Labour Court, Allahabad & another 745
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
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
746
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 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
2 All] M/s United Provincial Transport Co. V. P.O., Labour Court, Allahabad & another 747
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 fact 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
748
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 Vs. Secretary,
Thodupuzha
Taluk
Shop
and
Commercial Establishment Workers'
Union and others (1973 Lab IC 398),
the Kerala High Court held:

"The burden of proof being on the
workmen to establish the employeremployee
relationship
an
adverse
inference cannot be drawn against the
employer that if he were to produce books
2 All] M/s United Provincial Transport Co. V. P.O., Labour Court, Allahabad & another 749
of accounts they would have proved
employer-employee relationship."

13. In Swapan Das Gupta and
others Vs. The First Labour Court of
West Bengal and others (1976 Lab IC
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 others
Vs. Kanak Chandra Dutta, AIR 1967
S.C. 884 in para 9 and 11 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
750
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. Vs. P.K. Rajamma
etc. etc. reported in 1977 (Vol. 3) SCR
678 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 not 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.
Vs. The Government of Hyderabad (1955)
1 S.C.R. 393. 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 no
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
another Vs. Raman Lal Keshav Lal
Soni & others (1983) 2 S.C.C. 33 in para
27 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
2 All] M/s United Provincial Transport Co. V. P.O., Labour Court, Allahabad & another 751
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. Vs. Chandra Prakash Pandey and
others, J.T. 2001 (4) S.C. 145, 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 Cooperative 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 on 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
752
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 another
Vs. Raman Lal Keshav Lal Soni and
others, {1983 (2) SCC 33}"

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
Government
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 for 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 M/s. Basti Sugar Mills Ltd. Vs.
Ram Ujagar & others, AIR 1964 S.C.
355, and M/s. Bharat Heavy Electricals
Ltd. Vs. State of U.P. and others,
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.
2 All] M/s United Provincial Transport Co. V. P.O., Labour Court, Allahabad & another 753
2226 of 2001, National Fertilizer Ltd.
Vs. Labour Court and others. 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 respondentworkman, 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 Cooperative Mkt. Society Ltd. Vs. State of
Tamil Nadu and others J.T. 2004 (2)
SC 51=A.I.R. 2004 S.C. 1639 (2004
Labour & Industrial Cases) 905 (S.C.).

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.