Dismissed

State of U.P. Trhu. Addl. Chief Secy. Prin. Secy. Medical and Health Deptt. Lko. and Another v. Shilpi Srivastava and 3 Others

Allahabad HC27 May 2024/3823/2023

Case brief

AI extract

What is this about?

The High Court admitted the petitioner's claim regarding the petitioner's employee-claimant relationship via a 2013 letter but noted a lack of documentary evidence for a 2017 outsourcing contract. The Court upheld the Labour Court's award of reinstatement, dismissing the writ petition as devoid of merits.

What did the court decide?

Petition dismissed; parties to bear their own costs.

State of U.P. Trhu. Addl. Chief Secy. Prin. Secy… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:40247

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Court No. - 17

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Case :- WRIT - C No. - 3823 of 2023 Petitioner :- State Of U.P. Trhu. Addl. Chief Secy. Prin. Secy. Medical And Health Deptt. Lko. And Another Respondent :- Shilpi Srivastava And 3 Others Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Suresh Chandra Mishra,C.S.C.,Shashin Srivastava

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Hon'ble Manish Mathur,J.

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Heard learned State counsel for petitioner and Mr. Suresh Chandra Mishra, learned Counsel for opposite party no.1.

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In view of order being proposed to be passed, notices to opposite parties no.2 to 4 stand dispensed with.

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Learned counsel for opposite party no.1 has raised objection that petition is maintainable under Article 227 and not under Article 226 of the Constitution of India.

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Learned counsel for petitioner in view of objection, prays for and is granted liberty to amend the cause title of this petition from under Article 226 to Article 227 of the Constitution of India alongwith concomitant changes during course of day.

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Petition has been filed challenging award dated 13.10.2022 passed in adjudication case no.27 of 2020 by the Labour Court.

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It has been submitted that opposite party no.1 being claimant filed the claim whereafter reference was made under Section 4- A of U.P. Industrial Disputes Act, 1947 with regard to validity of alleged termination of services of the claimant on 30.01.2018 and its consequences. The said claim has been allowed by Labour Court by means of impugned award.

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It has been submitted that the claimant had made an assertion that she had been employed with the petitioner in the Hospital concerned being B.R.D. Chikitsalay vide order dated 18.09.2013 whereafter it was alleged that the claimant had been terminated from service on 30.01.2018.

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It has been submitted that the Labour Court has failed to adjudicate upon the issue of employer employee relation-ship particularly in view of the fact that her earlier contractual employment with the petitioner came to an end in January, 2017 in pursuance of contract entered into between petitioner and outsourcing agency dated 01.01.2017 whereafter her

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employment with the petitioner was only through the outsourcing agency. It has also been submitted that instead of reinstatement with back-wages, a lump-sum amount of compensation could very well have been awarded by the Labour Court.

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It has also been submitted that once the claimant herself indicated that she had been engaged by a contractor in separate proceedings in P.W. Case No. 211 of 2018, the said admission should have been adjudicated upon. Learned counsel has also submitted that 50% back-wages awarded to the claimant cannot be sustained in view of settled legal position. Submission has also been made that the burden of proving continuous satisfactory service for a period of 240 days in a calendar year vested upon the claimant, which was a burden undischarged.

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Learned counsel appearing for opposite party no.1 claimant has refuted submissions advanced by learned counsel for petitioner with the submission that a perusal of impugned order will make it evident that findings have been recorded by the Labour Court on the basis of evidence and material on record and there is no error therein. It is submitted that the reinstatement and award of back-wages were the natural consequence of findings recorded by the Labour Court.

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Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, specifically the impugned award, it is evident that the claimant had put forth a case that she had been appointed on contract basis vide order dated 18.09.2013 issued by the Chief Medical Superintendent of the Hospital and continued as such till termination of her services. The issue of employee employer relation-ship between the petitioner and the claimant has been adjudicated upon by the Labour Court specifically adverting to the fact that assertion made by claimant that she had been appointed in terms of letter dated 18.09.2013 issued by the Chief Medical Superintendent of the Hospital has not been controverted in the written statement and therefore the Labour Court presumed employer employee relation-ship between two.

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A perusal of the written statement filed by the petitioner before Labour Court does make it apparent that the aforesaid fact as asserted by the claimant has not been denied. The natural consequence would be that the petitioner as an opposite party in the claim petition would be deemed to have admitted the aforesaid assertion.

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The award also indicates the fact that petitioner had produced one Mr. Ashish Kumar Sharma, clerk in the aforesaid

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hospital as a witness to depose that the claimant had been initially engaged on contractual basis but was re-engaged only in terms of contract dated 01.01.2017. However the award also indicates that except for the said deposition, no documentary evidence was brought on record before Labour Court to corroborate or substantiate such an assertion.

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It is the case of petitioner that although the claimant was engaged earlier in 2013 but due to a service contract entered into between petitioner and outsourcing agency-opposite party no.4, fresh appointment was issued to petitioner as an outsourced employee and therefore there was no employee employer relation-ship between the petitioner and the claimant.

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With regard to aforesaid, a perusal of impugned award will make it evident that the factum of claimant's engagement in service vide appointment letter dated 18.09.2013 issued by the Chief Medical Superintendent of Hospital has not been denied. The assertion made that subsequently in pursuance of the agreement dated 01.01.2017, she was freshly engaged as an outsourced employee would require three criteria to be fulfilled viz: (a) termination of earlier services, (b) fresh appointment issued in pursuance of alleged contract dated 01.01.2017 (c) claimant being a party to the aforesaid contract.

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A perusal of material on record clearly depicts that none of the aforesaid three conditions were satisfied by the petitioner by adducing any documentary evidence.

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In the considered opinion of this Court, once the petitioner had clearly admitted claimants engagement in service in the year 2013, it was incumbent them to have indicated by any documentary evidence that the said contractual services were thereafter terminated and the claimant was re-engaged on a fresh basis in pursuance of the alleged agreement dated 01.01.2017. For the said purpose, it was also incumbent upon the petitioner to have adduced any documentary evidence to prove fresh engagement of claimant as an outsourced employee. Furthermore once services of opposite party no.1 directly with the Hospital since September, 2013 was admitted, it was also incumbent upon the petitioner to have demonstrated by any documentary evidence that the claimant was made aware of or was a party to the contract dated 01.01.2017.

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18 . A perusal of the award also clearly demonstrates the fact that except for the deposition of the said Ashish Kumar Sharma as EW1, no documentary evidence was brought on record to prove his deposition. In fact the present case is one where the petitioner as an opposite party in the proceedings has failed to

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substantiate its assertion by any documentary evidence whatsoever.

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It is also relevant that the aforesaid E.W.1 Ashish Kumar Sharma in his deposition has clearly indicated the fact that all the original records are available in the office but despite the same, failed to produce.

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In view of aforesaid facts and circumstances as narrated herein-above, it is quite evident that the Labour Court has rightly drawn an adverse inference against petitioner in the absence of any documentary evidence being adduced by. Since the natural consequence of such an adverse inference would be continued services rendered by claimant from 18.09.2013, no exception can be taken to the impugned award dated 13.10.2022.

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In view of aforesaid, petition being devoid of merits is dismissed . Parties to bear their own costs.

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Order Date :- 27.5.2024 Subodh/-

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Digitally signed by :- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Trhu. Addl. Chief Secy. Prin. Secy. Medical and Health Deptt. Lko. and Another v. Shilpi Srivastava and 3 Others

Case brief

What is this about?

What did the court decide?

State of U.P. Trhu. Addl. Chief Secy. Prin. Secy. Medical and Health Deptt. Lko. and Another v. Shilpi Srivastava and 3 Others

Case brief

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What did the court decide?

What the court decided

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