Mahipal Singh Tomar vs The Management Of M/S Kendriya ...
2009 Latest Caselaw 827 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           W.P.(C) NO.5865/2005

%                                          Date of Decision : 16.03.2009


MAHIPAL SINGH TOMAR                       .... Petitioner
                Through Mr.Mohd. Nayeemuddin, Advocate

                                  Versus

THE MANAGEMENT OF M/S KENDRIYA                           .... Respondent
BHANDAR

                       Through Ms.Madhuri Gupta proxy counsel.

HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                             NO
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 instant writ petition has challenged the

award dated 6th June, 2003 by virtue of which a finding was rendered

that the petitioner was unable to establish the relationship of workman

and employer between the petitioner and the respondent. The

petitioner has also challenged the order dated 16th October, 2004

passed by the learned Labour Court in ID No.155/2004 titled as The

Management of M/s Kendriya Bhandar Vs. Workman Mahipal

Singh Tomar rejecting his application purported to have been filed on

9th June, 2003 and 3rd September, 2003 seeking opportunity to adduce

additional evidence after recalling the earlier order.

2. Briefly stated the facts of the case are that the petitioner has

made terms of reference to the Labour Court from the office of Secretary

(Labour) on 18th August, 1998 in the following terms:-

"Whether the services of Shri Mahipal Singh Tomar have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. On the basis of the said reference, notices were issued to both the

parties who filed their pleadings and on the basis of the same, the

following issues were framed:-

"(i) Whether there does not exist relationship of employer and employee between the parties?

(ii) Whether this court has no jurisdiction to try the present petition in view of preliminary objection No.3 raised by the Mgt. in its written statement?

(iii) As per terms of reference.

(iv) Relief."

4. The petitioner in support of his case examined himself as a lone

witness while as the Management in support of its case examined one

Sh.S.A.Alishah.

5. The learned Labour Court after hearing the arguments, arrived at

a finding that the petitioner has miserably failed to establish the

relationship of employer and employee between the parties. The reason

for giving such a finding was that the petitioner had claimed himself to

be employed by the respondent/Management on 14th October, 1992

and allegedly terminated from services on 14th October, 1997, but he

had failed to place on record any letter of appointment or wage slip or

even did not examine any co-worker which would establish that he was

actually employed by the respondent/Management. The petitioner had

also filed the documents which are wrongly exhibited as Ex.WW1/4, a

statement of „Employees Provident Funds Scheme‟ issued in favour of

the petitioner which is alleged to be showing that deductions by the

respondent /Management was being made from the wages of the

petitioner on account of his contribution to the Provident Fund.

Another document is exhibited as Ex.WW1/3 which is purported to

have been issued by the ESI Corporation. In this document, the

learned Labour Court had observed that the date of appointment of the

petitioner was shown to be as 1st April, 1996 while as in the statement

of claim he was claiming to have been appointed in 1992. Since no

person was examined from these two offices, the Labour Court came to

a finding that these documents have not been proved in accordance

with law and obviously they were not made the basis of arriving at a

finding in favour of the petitioner. Thus the learned Labour Court

passed an award against the petitioner holding that there was no

relationship of the employer and the employee.

6. After passing of the award, the petitioner is purported to have

filed an application on 9th June, 2003 followed by another application

on 3rd September, 2003 wherein it was stated that the petitioner may be

given an opportunity to adduce evidence from the two offices in order to

prove the documents of provident fund and the Employees‟ State

Insurance. In these applications, it was stated by the petitioner that

though the award has been passed on 6th June, 2003, but he learnt

about the factum of award having been passed only on 2nd July, 2003.

7. This application was also rejected by the Labour Court on the

ground that since the arguments were heard on merits and the award

was already passed, therefore, there was no occasion for the Labour

Court to recall the earlier award and give him opportunity to adduce

evidence.

8. I have heard the learned counsel for the petitioner. Learned

counsel for the respondent is not present. I have carefully gone through

the record. The learned Labour Court has arrived at a finding of fact

which cannot be set aside by the writ Court as if it is a Court of appeal.

The contention of the learned counsel for the petitioner is that he

should be given an opportunity to adduce evidence after setting aside

the award and remitting the matter back to the learned labour Court

also does not convince me on account of the fact that it is not a case

where there is violation of principles of natural justice or the petitioner

having not been given a reasonable opportunity of adducing evidence.

The petitioner was given reasonable opportunity to adduce evidence and

if he has chosen to examine himself only in order to establish his case

of being a workman, he has done so, on his own peril. After having

suffered adverse order on account of non-proving of documents, which

were in his possession, he cannot turn round and seek an opportunity

to prove those documents and pray for setting aside the award. The

case has been going on for last four years in the High Court itself.

Therefore, I feel that this prayer of the petitioner for simply setting aside

the award and giving him an opportunity to adduce evidence is not at

all warranted, as it will only prolong the litigation especially in the light

of the fact that when the petitioner has failed to show any violation of

principles of natural justice, any rule, regulation or that the award or

the order dated 16th October, 2004 suffers from illegality or perversity.

9. Accordingly, the writ petition is dismissed.

No order as to costs.

MARCH 16, 2009                                             V.K. SHALI, J.
RN