Shri Chander Sain & Ors. vs M/S J.B. Garments
2009 Latest Caselaw 1439 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) NO. 8252/2009
                         Date of Decision: 17.04.2009
%

Shri Chander Sain & Ors.                                .... Petitioners

                     Through : Mr. K.K. Tyagi, Advocate

                                 Versus

M/s J.B. Garments                                       .... Respondent

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

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                            YES
2.    To be referred to the reporter or not?                  YES
3.    Whether the judgment should be reported in
      the Digest?                                             YES

V. K. SHALI, J. (Oral)

*

1. The petitioners in the instant writ petition have assailed the

award dated 17th October, 2008 passed by the learned Labour Court

No.-IX in ID No. 310/2003 in the case titled Sh. Chander Sain & Ors.

Vs. M/s J.B. Garments.

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

come to the finding that the petitioners/workmen have miserably failed

to establish relationship of employer and employees between the parties

and accordingly, the reference of the appropriate government whether

the services of workman as per Annexure „A‟ have been terminated by

the management illegally and/or unjustifiably and if so, to what relief

are they entitled and what directions are necessary in this respect was

answered in negative.

3. That briefly stated the case of the petitioners is that the petition

had involved 13 workmen on whom a reference was sought from the

appropriate government as to whether their services were terminated on

17th February, 2002 as the petitioners/workmen had demanded various

facilities from the respondent/management. The

respondent/management contested the statement of claim of the

petitioners and on the basis of the pleadings of the parties, the following

three issues were framed:

(i) Whether there is no relationship of employer and employees between the parties.

       (ii)      As per terms of reference.
       (iii)     Relief.

4. With regard to the issue No.1, the parties adduced their

respective evidence. The learned Labour Court after analyzing the

evidence came to a finding that the petitioners were not able to

establish the relationship of employer and employee between the

parties. This was so held by the learned Labour Court on account of

the fact that petitioners had not produced any documentary evidence in

the shape of wage slip, appointment letter, etc. in order to establish

their relationship of employer and employee. On the contrary, the

workmen in their cross-examination had admitted that they did not

have any proof with regard to their employment with the management.

The documents which were proved by the workmen were complaints

Exhibits WW1/1, WW1/2 WW1/3, WW1/4 and WW1/5. These

complaints were made by the petitioners/workmen to the DCP

(East)/Police Authorities regarding the harassment meted out to them

by the respondent/management.

5. The learned Labour Court on the basis of the judgment of the

Hon‟ble Supreme Court in the case titled Wrokmen of Neelgiri Co-

operative Marketing Society Ltd. Vs. State of Tamil Nadu and Ors

2004 LLR 351 SC held that it was primarily the responsibility of the

workmen to establish the relationship of employer and employee

between the parties and no adverse inference could be drawn against

them on account of non-production of any document by the

management.

6. It has been contended by the learned counsel for the

petitioners/workmen that this finding of the learned Labour Court is

totally perverse inasmuch as the learned Labour Court has not referred

to the report of the Conciliation Officer wherein Mr. Santosh Kumar, a

representative of the management has accepted that all the petitioners

are their employees and therefore, on the basis of this, the relationship

of the parties is established. It was also contended by the learned

counsel for the petitioners that undoubtedly it has come in the evidence

that the petitioners/workmen were piece-rated workers and as per the

definition of the „employee‟ in the Delhi Shops and Establishment Act,

1954, the word „employee‟ would also include any person who is doing

permanent, periodical, contact, piece-rated or commission basis work.

Section 7 sub-section (2) of Delhi Shops and Establishment Act, 1954

defines an employee as under:

"Employee means a person wholly or principally employed whether directly or otherwise and whether for wages (payable or permanent, periodically, contract, piece rate or commission basis) or other consideration about the business of an Establishment and includes as an apprentice and any person employed in a factory but not governed by factories Act. And for the purpose of any matter regulated by this Act also includes a person discharge or dismissed whose claims have not been settled in accordance with this Act."

7. Reliance is also sought to be placed by the learned counsel for the

petitioner on the case titled Silver Jubilee Tailoring House & Ors Vs.

Chief Inspector of Shops and Establishments 1973 (FLR) SC 350.

8. I have gone through the authorities cited as well as the definition

of word „employee‟. There is no dispute about the fact that primarily the

onus is on the petitioners/workmen to establish that there exists a

relationship of employer and employees between the parties. No

presumption on this score can be drawn. The said relationship of

employer and employees can be established by the petitioners only by a

positive evidence like letter of appointment, wage slip or contribution

which is made from the salary/wage of the workmen to ESI to the

Provident Fund Commissioner. In the instant case, none of such

documents or proofs has been produced by the petitioners. The

petitioners have not examined any co-workers who would have testified

in their favour.

9. On the contrary, all the workmen, who have testified on affidavits

and have been cross examined, they had admitted in their cross

examination that they were not in a position to produce any document

to establish the relationship of employer and employees between the

parties. The documents which have been adduced by the petitioners

are the complaints purported to have been made by the petitioners to

the police authorities. These complaints which are made by the

petitioners to the police authorities can hardly be said to be documents

to establish the relationship of employer and employees between the

parties. They are in the nature of self-serving documents. These

documents at best can only show the contemporaneous conduct of a

party in law in the given facts and circumstances of a case and these

documents can hardly be of any assistance to the petitioners to

discharge that initial onus to establish the relationship of employer and

employees between the parties which lies squarely on the petitioners.

Since the initial onus to establish the relationship of employer and

employees between the parties has not been discharged by the

petitioners, consequently the said onus never got shifted on to the

respondent/management to establish the fact that there existed no

relationship of employer and employees between the parties. Reliance

in this regard is being placed on the following judgments of the Hon‟ble

Supreme Court :

Workmen of Nilgiri Coop. Mkt. Society Ltd. Vs. State of Tamil Nadu 2004(2) SCALE 311 and Kanpur Electricity Supply Co. Ltd. Vs. Shamim Mirza 2008(4) SCALE 604.

10. The learned Labour Court has also rightly analysed the evidence

and come to a finding of fact that the petitioners/workmen have failed

to establish the relationship of employer and employees between the

parties. This High Court cannot sit as a Court of Appeal over the

finding of the Labour Court and come to a different finding on the basis

of the analysis of the evidence. There is no infirmity in the award

passed by the learned Labour Court.

10. The submission of the learned counsel for the petitioners that an

„employee‟ as given in the Delhi Shops and Establishment Act, 1954 can

be said to be the piece-rated worker and accordingly even though the

petitioners were piece-rated worker, they are employees of the

respondent/management, does not seems to be apt or legally sound.

There may be different enactments giving the definition of the word

„employer‟ and „employee‟. The definition of one particular enactment

cannot be transplanted into another enactment. The workman has

been specifically defined Under Section 2 sub section 7 of Delhi Shops

and Establishment Act, 1954 and cannot be incorporated into the

industrial disputes so as to governing the definition of the workman in

the Industrial Disputes Act to hold that the petitioners although were

piece-rated workers whereas within the definition of Under Section 2

sub section 7 of Delhi Shops and Establishment Act, 1954, they are

employees within the definition of Delhi Shops and Establishment Act,

1954.

11. Therefore, this argument also does not have any merit. The

judgment as has been cited by the learned counsel for the petitioners is

also not applicable to the facts of the present case.

12. For the foregoing reasons, I am of the considered opinion that

there is no illegality and violation of any regulation which warrant any

inference with the award passed by the Labour.

13. The writ petition is without any merit and accordingly the same is

dismissed.

APRIL 17, 2009                                          V.K. SHALI, J.
KP