J.B.Exports Ltd. vs Akhilesh Kumar
2009 Latest Caselaw 1291 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                   Writ Petition (Civil) No.775/2009

                                      Date of Decision : 09.04.2009

J.B.EXPORTS LTD.                                      ......Petitioner
                                      Through : Mr.Piyush Sharma,
                                                Advocate.

                                   Versus

AKHILESH KUMAR                                     ...... Respondent
                                      Through : Nemo.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                            NO
2.    To be referred to the Reporter or not ?                 NO
3.    Whether the judgment should be reported
      in the Digest ?                                         NO

V.K. SHALI, J. (Oral)

1. The petitioner in the present writ petition has challenged

the award dated 12th March, 2008 passed by the learned Labour

Court-I in ID No.927/2001 in case titled Sh.Akhilesh Kumar Vs.

M/s J.B.Exports Ltd.

2. By virtue of the aforesaid award, the learned Labour Court

has answered the reference made to it that the services of

Sh.Akhilesh Kumar have been terminated illegally and

unjustifiably, however, instead of directing the reinstatement and

payment of back wages, the learned Labour Court granted one

time compensation of Rs.80,000/- to Sh.Akhilesh Kumar. It was

directed that the petitioner/Management shall pay the aforesaid

amount of Rs.80,000/- within two months from the date of

publication of the award failing which the respondent /workman

shall be entitled to interest on the aforesaid amount @ 8% per

annum from the date of publication till the actual realization of

the amount.

3. The petitioner feeling aggrieved by the aforesaid impugned

award has challenged the same by filing the present writ petition.

4. In the present writ petition, the petitioner has challenged

the award on the ground that the respondent /workman has not

completed 240 days of service and he has not discharged the

onus of proving that not only he has the requisite number of

days of service but also established the relationship of the

employer and employee between the parties. It was stated in the

writ petition that the respondent /workman was temporary

employed for a fixed period from 13.11.2000 to 12.12.2000 and

this small period of engagement of the respondent /workman did

not entail the compliance with the provisions of the Labour Laws.

5. I have gone through the record carefully.

6. One of the grounds of challenge in the writ petition to the

impugned award is that the learned Labour Court has grossly

erred by not compelling the respondent /workman to discharge

the onus of proving that he has worked with the

petitioner/Management for 240 days which would only bring him

within the definition of the word 'workman' given under Section

2(S) of the Industrial Disputes Act, 1947 so as to entail

compliance of Section 25(F) of the Act. It was contended that the

learned Labour Court has only placed reliance on the statement

of the respondent /workman in giving such a finding. Learned

counsel earlier had cited two judgments titled Rannip Nagar

Palika Vs. Babuji Gabhaji Thakore & Ors. (2007) 13 SCC 343

and Surendranagar District Panchayat Vs. Dahyabhai

Amarsinh (2005) 8 SCC 750 in support of his point. In both

these judgments, the Apex Court has held that burden of proof

lies on the workman to establish that there exists a relationship

of the employee and employer between the parties and the fact

that the workman has continuously put in 240 days of service

with the employer before he can said to be a workman. For this

purpose, the respondent /workman may prove the receipts of salary or

wages, record of his appointment or engagement for the year or even

by examination of his co-worker.

7. I have gone through the judgments cited on behalf of the

petitioner.

8. There is no dispute that before the respondent/workman is

given any benefit of the Labour Laws or before holding that the

termination of services of a given employee was in violation of the

Industrial Disputes Act, the respondent/workman must discharge the

onus which is squarely on him to establish that he has worked for 240

days or that there exists a relationship of employee and employer

between the parties. This positive finding must be recorded as a

finding of fact by the learned Labour Court after examining and

analyzing the evidence produced by the respective sides. However, it

is not always possible to adduce the documentary evidence in the form

of documents like letter of appointment, co-worker, register

maintained by the employer in all the cases. There can be no straight

jacket formula involved in establishing that relationship. It is a

question of appreciation of evidence which the learned Labour Court is

expected to perform after analyzing the evidence.

9. Coming back to the facts of the present case are that the learned

Labour Court has given a categorical finding on the basis of the

affidavit and the document adduced by the workman Ex.WW1/1 to

Ex.WW1/7 that the respondent /workman has worked from 1997 till

2000 with the petitioner /management. He has also proved vouchers,

challan/bills which are Ex.WW1/8 to Ex.WW1/14. With regard to the

first set of documents, the learned Labour Court has also observed

that the management has not cross examined the witness. On the

aforesaid proof having been provided, the onus had shifted on to the

management to establish that the respondent /workman was not their

employee or that he had not served them for 240 days as was claimed

by them. The petitioner /Management miserably failed to do this.

Accordingly, on the basis of the respective evidence, the learned

Labour Court came to a finding that there exists a relationship of an

employee and employer between the parties. Since there is a

categorical finding that the respondent /workman had been employed

with the petitioner /Management from 1997 to 2000, obviously he has

served for more than 240 days in a calendar year which is one of the

pre-requisites. The learned Labour Court has also held that there has

been violation of non-compliance of Section 25(F) of the Industrial

Disputes Act. I, accordingly, find the judgments relied upon by the

petitioner/Management are of no help to the petitioner. Therefore,

there is a clear cut finding that there exists a relationship of the

employer and employee between the parties and there is no illegality,

infirmity and violation of any rule or regulation by the Labour Court in

arriving at such a finding.

10. With regard to the quantum of compensation, the learned

Labour Court has given a sum of Rs.80,000/- as one time

compensation to the respondent /workman instead of directing

reinstatement and payment of back wages. This aspect of the matter

has not been challenged by the petitioner that the quantum of

compensation is on the higher side nor as the respondent /workman

challenged the same. Therefore, I uphold the quantum of

compensation fixed by the learned Labour Court also in favour of the

respondent /workman and against the petitioner /management.

11. For the reasons mentioned above, I am of the considered opinion

that there is no merit in the present writ petition and the same is

accordingly, dismissed in limine.

File be consigned to the Record Room.

V.K. SHALI, J.

APRIL 9, 2009 RN