Smt Santosh Sukheja And Others vs M/S Women S Action For Development ...
2009 Latest Caselaw 2764 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) No. 17860/2004

%                 Date of Decision: 22 July, 2009

#Smt. Santosh Sukheja & Ors.
                                                    ..... PETITIONERS
!                 Through: Mr. S.K. Tripathi, Advocate.

                            VERSUS
$ M/s women's Action for Development & Anr.
                                                       .....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 five workmen (the petitioners herein)

is directed against an award dated 05.09.2003 passed by Mr. D.C. Anand,

POLC I, Delhi declining relief to them for alleged illegal termination of

their services by respondent No. 1 w.e.f 12.08.1992. One of the

petitioners namely petitioner No. 5 Smt. Chandrawati is reported to has

expired during the pendency of the present proceedings and her legal

heirs have not come forward for their substitution after her death.

2 Briefly stated the facts of the case relevant for the disposal of this

writ petition are that 36 workers including the petitioners had raised an

industrial dispute with regard to termination of their services by

respondent No. 1 management w.e.f. 12.08.1992. The industrial dispute

raised by them was referred by the appropriate Government for

adjudication to the Labour Court.

3 Before the Labour Court statement of claim was filed on behalf of

the workmen stating therein that they were employed with various

projects of respondent No. 1 like Bal Baris, Sewing centres, adult

education centres, health workers, helpers, REC teachers etc for the last

4-5 years on monthly salary of Rs.500/- to Rs. 1,200/- per month. They all

alleged that their services were illegally terminated by respondent No. 1

and for that reason, they have prayed for their reinstatement with back

wages.

4 Respondent No. 1/ management had contested the claim inter-alia

on the ground that respondent No. 1 management is a voluntary

organization set up in Delhi and as such is not an industry. It was further

stated by respondent No. 1 in its written statement that the claimants

were never employed on wages and most of them are teachers who are

otherwise not workmen. As per the case set up by respondent No. 1 in its

written statement, the activities which were extended by respondent No.

1 to the community for their self reliance were closed and the services of

the volunteers including that of the claimants were dispensed with w.e.f.

12.08.1992 and their full and final payment was sent to them while

majority of the volunteers accepted their dues from the office of

respondent No. 1 organization.

5 On the pleadings of the parties, following issues were framed by

the Labour Court on 26.07.1999:-

1. Whether the management is not an industry as alleged in preliminary objection No. 1 of the W.S.?

2. Whether the claimants are not workmen as defined under Industrial Disputes Act?

3. Whether the management has been closed and the services of the claimants dispensed with vide notice dated 12.08.1992 and dues sent in full and final to the claimants, if so, its effect?

4. As per terms of reference.

6 On behalf of the claimants including the petitioners, only one

witness was examined namely WW-1 Mr. Chunmun Singh. Respondent

No. 1 management also examined one witness namely its Accounts

Officer Mr. J.K. Sharma.

7 The court below after considering the evidence produced by the

parties before it and noting the judgments of the Supreme Court reached

to a conclusion in the impugned award that respondent No. 1

organization is not an industry within the meaning of Section 2(j) of the

Industrial Disputes Act, 1947 and it also held that the claimants are not

workmen within the meaning of Section 2 (s) of the Industrial Disputes

Act, 1947. Basically these two findings of the court below have been

assailed by five out of 36 workers by filing the present writ petition.

8. I need not go into the correctness of the findings of the Labour

Court on the point whether respondent No. 1 organization is an industry

or not because the petitioners are not entitled to any relief in the present

writ petition even if it is assumed that respondent No. 1 organization is

an industry within the meaning of Section 2 (j) of the Industrial Disputes

Act, 1947. It is so because the only witness examined on behalf of the

claimants including the petitioners before the Labour Court is WW-1 Mr.

Chunmun Singh who in his testimony has said that before impugned

termination, he was working as a teacher with respondent No. 1

organization while other workers were sewing teachers, health workers,

helpers, music and dance teachers. The petitioners admittedly did not

examine either themselves or produce any other evidence before the

Labour Court to show that they come within the purview of definition of

'workmen' as provided under Section 2(s) of the Industrial Disputes Act,

1947. Once claim was filed on behalf of the petitioners before the Labour

Court, the onus was on them to establish in what capacity they were

employed as to whether they were teachers or working in some other

capacity which brings them within the ambit of 'workmen' as defined in

Section 2(s). Absence of production of evidence by the petitioners on this

crucial aspect disentitles them for any relief in the reference that was

made by the appropriate Government to the Labour Court for

adjudication. If a claimant fails to prove his/her case, then the relief as

prayed for by him/her cannot be granted by the Court. In this backdrop, I

do not find any perversity in the findings of the court below on the point

that the petitioners are not workmen within the meaning of Section 2(s)

of the Industrial Disputes Act, 1947. The impugned award of the court

below does not call for any interference by this Court in exercise of its

extraordinary discretionary writ jurisdiction under Article 226 of the

Constitution of India. Hence this writ petition fails and is hereby

dismissed.

9 At this stage, Mr. S.K. Tripathi learned counsel appearing on behalf

of the petitioners submits that liberty may be granted to the petitioners

to approach respondent No. 1 organization for payment, if any, due to

them under the rules. No such liberty is required to be granted because

in law the petitioners are even otherwise entitled to ask for payment

legally due to them from respondent No. 1 as per law.

JULY 22, 2009                                   S.N.AGGARWAL, J
'a'