Delhi High Court
Anukampa Enterprises vs Shri M.M. Faridi on 18 October, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of the Award dated 16.03.2004 passed by Labour Court-VI, Karkardooma, Delhi, whereby Labour Court has directed the reinstatement of the workman with full back wages.
2. Briefly the facts are that respondent claimed that he was working as Karigar with the petitioner since January 1997 and his services were terminated on 30.1.99. His last drawn wages were Rs. 2000/-. Following dispute was referred for adjudication to the labour Court:
Whether the services of the M.M. Faridi have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?
3. In the written statement the management denied relationship of employer and employee with the respondent and took the stand that workman had never worked with it and the industrial dispute has been raised at the instance of some person in order to blackmail the management. On the pleadings of the parties, the following issues were framed:
(i) Whether there does not exist relationship of employer and employee between the parties?
(ii) As per terms of reference.
(iii) Relief.
4. Tribunal while adjudicating the dispute on issue No. 1 observed that the onus of proving this issue was on the management. Although management produced its attendance-cum-wage register showing that the name of the respondent did not appear there while names of other employees were there and also examined one witness who testified that respondent never worked with the petitioner, but the Labour Court observed that testimony of the management witness as well as document were not believable and held that respondent was the employee of the petitioner. While deciding second issue the Labour Court observed that admittedly at the time of termination of the service of the workman no notice of retrenchment under Section 25F of I.D. Act was given, so the termination was illegal.
5. The order of the Tribunal is contrary to the settled law. It is settled law that if a workman claims that he was employee of the management and the relationship is denied by the management, the onus to prove employer- employee relation was on the workman. Labour Court wrongly put the onus on the management and after putting onus on the management, Labour Court rejected the entire evidence produced by the management on the ground of unreliability. The workman did not produce an iota of evidence except his own self serving statement about his employment with petitioner.
6. The Labour Court in this case without going into the fact whether respondent satisfied the requirement of Section 25(B) in order to be covered under Section 25(F) of the Act, has given its verdict about the termination. Supreme Court in Range Forest Officer v. S.T. Hadimani 2002- I, LLJ, 1053, has held as under:
In our opinion the Tribunal was not right in placing the onus upon the Management without first determining on the basis of the cogent evidence that the respondent had worked for more than 240 days in the 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 favor and that cannot be regarded as sufficient evidence for any court or Tribunal to come to the conclusion that a workman had, in fact worked for 240 days in a year. No proof of receipt of 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. (para 2) Supreme Court in Municipal Corporation Faridabad v. Sri Niwas held:
From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case.
7. A perusal of the Award and the evidence filed by the workman respondent would show that except self serving statement, there was no evidence to show that he was employed by the management or he had ever worked with the management or worked for 240 days. The order passed by the Labour Court is perverse and contrary to the settled propositions of law.
8. In view of above discussions, writ petition is allowed and the Award dated 16.03.2004 passed by Labour Court-VI, Karkardooma, Delhi. is hereby set aside.
