Shri Ram Kumar vs Municipal Corporation Of Delhi
2009 Latest Caselaw 3030 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 17649/2004

%                 Date of Decision: 06th August, 2009

# SHRI RAM KUMAR
                                                  ..... PETITIONER
!                 Through: Mr. Anuj Aggarwal, Advocate

                                 VERSUS

$ MUNICIPAL CORPORATION OF DELHI
                                                  .....RESPONDENT

^                 Through: Ms. Amita Gupta , Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper 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

S.N.AGGARWAL, J (ORAL) This writ petition filed by the workman (petitioner herein) is

directed against an award dated 02.05.2003 in I.D. No. 892/1998 passed

by the Industrial Adjudicator denying relief of reinstatement and back

wages to him.

2. Heard.

3. Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the petitioner was allegedly appointed as a Bullock

Cart Driver with Municipal Corporation of Delhi on daily wages w.e.f.

20.04.1991 and was allegedly terminated w.e.f. 20.05.1994. The

petitioner had raised an industrial dispute with regard to his alleged

termination which was referred by the appropriate Government for

adjudication to the Labour Court.

4. In response to the claim of the petitioner, the MCD (respondent

herein) in its written statement filed before the Labour Court, took a plea

that the petitioner was not entitled for reinstatement or regularisation or

back wages because he has worked in the MCD as daily wager hardly for

a period of 35 days between 19.08.1991 and 22.09.1991.

5. In support of his claim, the petitioner had examined only himself as

WW-1 whereas no evidence was produced by the respondent. The

Labour Court after considering the evidence of the petitioner did not

agree with him that he was appointed with the respondent from

20.04.1991 to 20.05.1994. It was also held by the Court below in the

impugned award that the petitioner has failed to prove that his services

had been terminated by the respondent w.e.f. 20.05.1994 and, therefore,

it was said by the Labour Court that the question of termination of the

petitioner from the service of respondent does not arise. It is aggrieved

by the finding of the Court below contained in the impugned award that

the workman has filed the present writ petition seeking to set aside the

said award.

6. Mr. Anuj Agarwal, learned counsel appearing on behalf of the

petitioner has placed reliance on an experience certificate Exhibit WW-

1/2 (Annexure P-3 at page 21 of the Paper Book) to contend that as per

own showing of the respondent the petitioner had worked as Bullock Cart

Driver from April 1991 till May 1994. This document relied upon by the

petitioner's learned counsel has been considered by the Court below but

it was not believed to be a genuine document.

7. I have gone through the affidavit filed by the petitioner in his

evidence before the Court below as well as his cross-examination done

by the authorised representative of the management (page 37-41 of the

Paper Book). The petitioner except tendering alleged experience

certificate Exhibit WW-1/2 in his affidavit has not stated anything as to

who had issued the said certificate to him and under what circumstances

the certificate came to be issued to him. The author of the document

Exhibit WW-1/2 was not examined by the workman. The initial burden of

proof to prove that the petitioner had worked with the respondent from

April 1991 to May 1994 was on him. It is evident from the record that he

had failed to discharge the said onus. Filing of an affidavit in evidence by

the petitioner was only his own statement in his favour and it cannot be

regarded as sufficient evidence to come to a conclusion that he had in

fact worked from April 1991 to May 1994 as alleged by him in the

statement of claim. Reliance is placed on two judgments of the Supreme

Court in Range Forest officer Vs. S.T. Hadimani (2002) 3 SCC 25

and Manager, Reserve Bank of India, Bangalore Vs. S. Mani and

others (2005) 5 SCC 100.

8. It shall be significant to mention that the petitioner himself had

made an application on 20.05.1994 to the respondent for issuing him an

experience certificate and in the said application which is Annexure P-2

as page 19 of the Paper Book, he himself had stated that he had worked

with the respondent in 1991-1992. If he himself says that he had worked

with the respondent in the years 1991 and 1992 then how could he claim

that he had worked with MCD from 20.04.1991 to 20.05.1994.

Furthermore in the demand notice Ex. WW-1/3 dated 02.01.1997, he has

described himself to be a daily wager whereas in his cross-examination

recorded before the Labour Court he stated that he was appointed on

regular basis. It is quite evident from the material that was available

before the Labour Court that the petitioner had failed to prove that his

services were illegally terminated by the respondent w.e.f. 20.05.1994 or

that he had worked with the respondent during the period from

20.04.1991 to 20.05.1994. The impugned award of the Court below is

based upon cogent evidence.

9. For the foregoing reasons, I do not find any infirmity, illegality or

perversity in the impugned award that may call for an interference by

this Court in exercise of its extraordinary discretionary writ jurisdiction

under Article 226 of the Constitution. This writ petition, therefore, fails

and is hereby dismissed in limine.

AUGUST 06, 2009                                      S.N.AGGARWAL, J
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