Delhi High Court
Maharaj Singh vs Principal, Iti Nand Nagri, Delhi ... on 7 July, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8619/2009
% Date of Decision: 07 July, 2009
# Maharaj Singh
..... Petitioner
! Through: Mr. Rishikesh, Advocate.
Versus
$ Principal, ITI Nand Nagri, Delhi & Ors.
.....Respondents
^ Through: Nemo.
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 is directed against an award
dated 11.04.2008 passed by Mr. S.K. Kaushik, Presiding Officer, Labour
Court No. XII, Delhi rejecting the claim of the petitioner for reinstatement
or back wages holding that there was no relationship of employer and
employee between the parties.
2 Heard.
3 The petitioner alleged to have worked as Pump Operator in ITI,
Nand Nagri w.e.f. 01.01.1996 at a fixed salary of Rs.1,500/- per month.
He has further alleged that he was illegally terminated by the
respondents (management) w.e.f. 08.03.2003. He raised an industrial
dispute with regard to his alleged termination which was referred by the
appropriate Government for adjudication to the Labour Court vide letter
of reference dated 20.04.2005 to decide as to whether the alleged
termination of the petitioner was illegal and unjustified. The petitioner
has made a claim for his reinstatement against three persons i.e. (i) ITI,
Nand Nagri, (ii) Assistant Engineer, PWD and (iii) Junior Engineer, PWD.
4 The petitioner, in the course of his cross-examination before the
court below, admitted that he was not appointed by ITI, Nand Nagri. He
further admitted that he was never paid any salary by ITI, Nand Nagri.
Therefore, the question of directing reinstatement against ITI, Nand Nagri
could not arise and the court below has rightly held that there was no
relationship of employer and employee between the petitioner and
management No. 1 i.e ITI, Nand Nagri. As far as case of the petitioner
that he was appointed by Junior Engineer, PWD is concerned, the court
below upon consideration of evidence adduced by the parties before it
has rightly come to a conclusion that there was no relationship of
employer and employee between the petitioner and even PWD
(represented by respondents No. 2 & 3 herein).
5 It was held by the Hon'ble Supreme Court in Swapan Vs. 1st Labour
Court W.B. 1976 LAB I.C. 202 that where a person assert that he was
workman of a company and the relationship of employer and employee is
denied by the company then it is for the workman to prove the fact of his
appointment by the company. It was specifically held by the Hon'ble
Supreme Court in the said case that it is not for the employer to establish
that the workman was appointed by him. The question as to how the
relationship of employer and employee can be established has been
considered by Madhya Pradesh High Court in Dhyan Singh Vs. Raman Lal
2001 LLR 148 (MP) wherein it was held as under:-
"To prove a contract of employment, there has to be a direct
evidence to show some nexus between the claimant and the
respondent. This can by of any kind such as appointment letter,
monthly payment slip, deduction of PF, payment any dues which
would show that he was in the employment, any correspondence
wherein the respondent has admitted that the claimant was in his
employment. In substance courts are in favour of documentary
evidence to record a definite finding on such type of issue. They are
the best piece of evidence for coming to a conclusion one way or
other."
6 Admittedly, the petitioner in the present case did not produce any
appointment letter or payment slip to show the payment of wages, if any,
made to him by the respondents. Mr. Rishikesh learned counsel
appearing on behalf of the petitioner has heavily relied upon the fact that
court below has not properly appreciated the evidence in the form of log
book produced by the workman to show that he was working as Pump
Operator in ITI, Nand Nagri. The evidence of log book has been
considered by the court below and for reasons not believed to hold that
the petitioner was ever appointed by the PWD. It will be significant to
mention that the petitioner himself has admitted in ground 'B' at page 6
of the paper book that he got engaged as Pump Operator through a
contractor and was performing duties at the pump on instructions of the
respondents. The management witness Mr. M.P. Sharma, Executive
Engineer, PWD in last portion of para 2 at page 63 of his evidence
affidavit has testified that the PWD was maintaining the pump at ITI,
Nand Nagri through a contractor M/s Manish Electrical & Electronics. If as
per own admission of the petitioner as mentioned above, he was
appointed by the contractor then how can he alleged that he was
appointed either by ITI, Nand Nagri or by the PWD. It shall further be
significant to mention that the petitioner in his cross-examination has
also admitted that he was engaged at the pump at ITI, Nand Nagri but he
was neither interviewed nor did he make an application for his
appointment pursuant to any advertisement issued by the respondents.
This clearly establishes that the working of the petitioner at the Pump at
ITI, Nand Nagri on the basis of his appointment by a contractor cannot be
treated as his appointment by the respondents. The impugned award in
which it is held that there was no relationship of employer and employee
between the parties is a well reasoned award and does not call for any
interference by this Court in exercise of its extra ordinary discretionary
writ jurisdiction under Article 226 of the Constitution.
7 In view of the above, I do not find any merit in this writ petition
which fails and is hereby dismissed in limine.
July 07, 2009 S.N.AGGARWAL
a [JUDGE]
