LexKANPUR ELECTRICITY SUPPLY CO. LTD. versus SHAMIM MIRZA
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[2008), 15 S.C.R. 850 A KANPUR ELECTRICITY SUPPLY CO. LTD. II. SHAMIM MIRZA (Civil Appeal No. 6585 of 2008) B _ NOVEMBER 7, 2008 -[C.K. THAKKER AND D.K. JAIN, JJ.] Uttar Pradesh Industrial Disputes Act, 1947: c ss.' 6N, 6P and 6Q- Termination of service- Completion of 240 days - Burden of proof - Held: B,urden to prove that claimant was in employment of particular management, primarily lies on the person who claims to be so - However, degree of proof varies from case to case - No abstract rule 0 can be laid down - On facts, workmen discharged the burden to prove the employer-employee relation with appellant- em plo yer - Workmen adduced contemporaneous documentary evidence to prove that they were in regular employment of appellant - Appellant did not lead any E evidence in rebuttal, as such adverse inference drawn against appellant - Thus, order of courts below that workmen established having worked with appellant for 240 days as their employee, justified - Order of re-instatement upheld, however, directions as regard payment of back wages set aside. F s, 6N - Illegal termination of service-- Reinstatement - Back wages - Entitlement for - Held: Payment of full or partial back-wages is independent of reinstatement - It depends upon facts and circumstances of each case -, On G facts, workmen on their own established having worked with appellant for 240 dc;iys when their services were terminated I - - However, no record to show that workmen were selected ~. through regular recruitment process and that they were 1 actually qualified for the post- Thus, payment of back-wages H 850 KANPUR ELECTRICITY SUPPLY CO. LTD. v. SHAMIM 851 MIRZA ).\ to workmen not warranted. A Appellant-company opened various cash centres in different divisions and sub-divisions for collection of electricity bills from consumers. The contractor installed machines for collection of bills. The services of the B respondent-workmen were terminated w e f 02.09.1996. Respondents raised an industrial dispute that the ... appellant illegally terminated their service and that they were entitled to be reinstated with continuity in service and full back wages. The State Government referred th.e c dispute for adjudication. Respondents contended that they were appointed as cashiers at two sub-stations and were also depositing the cash so collected in the Treasury. Appellant-management contended that there was no relationship of employer and employee between them and the applicants; and that the contractor was D 'J responsible for the operation and upkeep of the machines installed for collection of electricity bills. The Adjudicatory Authority held that the respondents were in the regular employment of the appellant as cashiers and having worked for more than 240 days, their termination without E notice and payment of compensation was illegal. It passed an award directing re-instatement of the respondents-workmen with full back wages and continuity in service. Appellant filed writ petitions. High Court upheld the order of reinstatement. However, it .F modified the award to the extent that the respondents would be entitled to 50% of the back wages pursuant to the award. Hence the present appeals. Partly allowing the appeals, the Court G HELD: 1.1 In light of the facts and the evidence on t record, the courts below were justified in holding that both the workmen have established their claim of having worked with the appellant for more than 240 days as their employees. Thus, there is no reason whatsoever to H · 852 SUPREME COURT REPORTS . [2008] 15 S.C.R. A interfere with the impugned judgments ·to that extent. [Para 20] [862-F-G] ' 1.2. The burden to prove that a claimant was in 'the en1ployment of a particula~ management, primarily lies on . 8 ·the ·person who claims to ·be so bufthe degree· of proof, so required, varies from case to case. It is neither feasible nor 'advisable to lay down an abstract rule to determine 'tlie employer-employee relationship. It is' essentially a question of fact to be determined by ha'ving regard to the ·cumulative effect of the entire material placed before the · C adjudicatory forum by the claimant and the management. [Para 15] [860~E-F] 1.3. In the instant case, the workmen did not produce the letters of appointment as also their salary slips but o they have been successful in adducing some contemporaneous documentary evidence
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