Sh.Munish Kumar vs M/S B.S.Traders
2009 Latest Caselaw 1529 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.7773/2009

                                       Date of Decision : 20.4.2009

SH.MUNISH KUMAR                                       ......Petitioner
                                      Through       :      Mr.Mahesh
                                      Srivastav, Advocate.


                                  Versus

M/S B.S.TRADERS                                   ...... 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 ?  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 3rd August, 2007 passed by the learned Labour

Court in ID No.358/2005 in case titled Sh.Munish Kumar Vs.

M/s B.S.Traders. By virtue of the aforesaid award, a reference

was answered by holding that the petitioner has not been able to

establish the existence of relationship of employee and employer

between the parties.

2. I have heard the learned counsel for the petitioner and gone

through the record including the record of the learned Labour

Court. I have also carefully considered the submission made by

the learned counsel for the petitioner.

3. The first point on which the writ petition deserves to be

dismissed is the ground of delay and laches. A perusal of the

award would show that the same was passed on 3rd August,

2007 holding that there exists no relationship between the

petitioner and the respondent. The award has been published on

31.12.2007. The petitioner in the entire writ petition has not

given the reasons as to why he did not assail the award for a

period of more than 1½ years.

4. This is now settled in catena of judgments that although

there is no period of limitation prescribed in invoking the writ

jurisdiction of the High Court, however, the High Court would be

loath to exercise its jurisdiction in case there is inordinate delay

and laches on the part of the petitioner in coming to the Court

5. In fact, there is not even an iota of averment made in the

writ petition as to why the petitioner slept over his right of

assailing the award before the High Court for such a long time.

Therefore, by virtue of the present challenge, the petitioner is

trying to rake a stale claim which he seems to have accepted

along back.

6. The second ground on which the writ petition deserves not

to be interfered with is that the award has been passed after an

issue with regard to the existence of relationship of employer and

employee was framed and the parties were given an opportunity

to adduce their respective evidence with regard to the same. The

learned Labour Court after analyzing the evidence has come to a

finding that the petitioner has not been able to establish the

relationship of the employee and employer between the parties.

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

petitioner that the petitioner had given in his statement names of

different workers who were working with the petitioner.

However, the petitioner was not cross examined by the

respondent on that score and therefore, this clearly established

that the petitioner was working there. In addition to this, the

learned counsel has drawn my attention to certain dak in the

shape of money orders and other letters purported to have been

received by the petitioner on the address where the respondent's

business was operating and the petitioner was purportedly

functioning. On the basis of these documents, it was urged that

this was sufficient to draw an inference that the petitioner was

able to discharge the initial onus of establishing the existence of

relationship.

8. The Supreme Court in catena of cases has consistently

taken the view that it is primarily the responsibility of the

workman to establish that he is employed by the respondent.

This may be done by him not only by entering into the witness

box but it should be supplied by adducing the documentary

evidence in the shape of appointment letter, wage slip, deduction

of EPE/PF contribution, insurance money etc. apart from

examining as co-worker. None of these aspects are available in

the present case. Therefore, the petitioner has miserably failed

to discharge that original onus of establishing being an employee

under respondent. Reliance in this regard is placed on the

following two judgments of the Supreme Court in Ranip Nagar

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

and Surendranagar District Panchayat Vs. Dahyabhai

Amarsinh (2005) 8 SCC 750.

9. The contention of the learned counsel for the petitioner is

that there was evidence in the shape of statement made by the

petitioner regarding the names of co-workers is of no

consequence even otherwise these are all questions of

appreciation of evidence and the writ Court does not sit as a

Court of appeal and re-appreciate the evidence and come to its

own finding and then substitute the same in place of the finding

arrived at by the learned Labour Court.

10. For the reasons mentioned above, I am of the considered

opinion that there is absolutely no merit in the present writ

petition. The petitioner has not been able to show violation of

any principles of natural justice, illegality, perversity or violation

of any rule or regulation which would warrant interference with

the award passed by the learned Labour Court. Accordingly, the

writ petition is dismissed.

File be consigned to the Record Room.

V.K. SHALI, J.

APRIL 20, 2009 RN