Management Of M/S Prakash Spares vs Govt. Of Nct Of Delhi & Others
2010 Latest Caselaw 1141 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 3314.2008

%                                  Judgment delivered on: 26.02.2010

Management of M/s PRAKASH SPARES                      ...... Petitioner
                                  Through:Mr. Pankaj Gupta, Advocate
                        versus

Govt. of NCT of Delhi & others                          .....
Respondent
                                 Through: Ms. Saroj Bidawat, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may
         be allowed to see the judgment?                        Yes

2.       To be referred to Reporter or not?                     Yes

3.       Whether the judgment should be reported
         in the Digest?                                         Yes

KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

impugned award dated 29.01.2008 passed by the Ld. Labour

Court in I.D. No. 143/06/2001 whereby directions were given to

the petitioner to reinstate the respondent with back wages.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner concern is a partnership

firm which owns and runs IBP Petrol pump. It is alleged by the

petitioner that the respondent workman claims to be its

employee but the fact is otherwise. The respondent workman

raised an industrial dispute bearing ID No.143/06/01 and as

per his claim he was working regularly with the management

since the year 1986 on a monthly salary of Rs.1800/-. The

respondent further claimed that he was denied appointment

letter, minimum wages and other statutory benefits and even

the ESI card was provided to him after substantial period of

time and his services were terminated by the petitioner on

16.4.2000.

3. Vide an award dated 29.1.2008 , the learned Labour

court ordered reinstatement of the respondent workman with

50% of backwages. Feeling aggrieved by the said award, the

present petition has been filed.

4. Counsel appearing for the petitioner submits that

the petitioner has denied the relationship of employer and

employee and therefore there could not have been any

occasion for termination of the services of the respondent.

Counsel further submits that the respondent workman failed to

establish the said relationship which is a pre-requisite to

invoke the jurisdiction of the Labour Court under the Industrial

Disputes Act and therefore, the award of the Labour Court is

not sustainable in the eyes of law. Counsel further submits

that the Ld. Labour Court wrongly placed reliance on the ESI

Card to come to the conclusion that there was a relationship of

employee and employer between the parties. Counsel for the

petitioner further submits that the declaration form was a

creation of the respondent and being a forged document,

reliance could not have been placed by the Labour Court on the

same. Counsel further submits that a careful perusal of the

said declaration form shows that it bears the different

parentage of the workman to what has been stated in his

affidavit. The said form further reveals that even the name of

the petitioner management is not correctly stated. The name

of the petitioner management as per the counsel for the

petitioner is "PRAKASH SPARES" while in the declaration form

the name of the management bears "PARKASH SPARES".

Even the name of the applicant in the declaration form was

changed from "Madan Mohan" to "Inder Mohan Singh" and

even the place of employment is shown as workshop while as

per own case of the respondent workman he was a salesman in

the petrol pump. Even the declaration form placed on record

by the respondent was scored off with a perpendicular line, and

that by itself would show that the said document was not a

genuine document. Counsel thus submits that Ld. Labour

Court had failed to consider these discrepancies in the said

document, proved on record as Ex. WW 2/1, and based on the

said solitary document it can be inferred that the relationship

of employer and employee does not exist.

5. Refuting the said submissions of counsel for the

petitioner, the counsel for the respondent submits that the

petitioner in the present writ petition is trying to build up a

new case although no such stand was taken by the petitioner

before the Labour Court. Drawing attention of this court to the

cross-examination of WW 2, Mr. Sunil Prasad, the witness

from the office of the ESI Local Office, Okhla counsel submits

that no such suggestion was given by the petitioner to this

witness so as to point out the above discrepancies. Counsel

further submits that in any case the said witness has produced

the original declaration form register and he clearly deposed

that the same relates to workman Inder Mohan. Counsel thus

submits that no fault can be found in the findings given by the

Ld. Labour Court.

6. I have heard counsel for the parties and gone

through the records.

7. No doubt the petitioner management in the written

statement has taken a stand that the respondent was never

employed by them and therefore there was no question of

termination of his service. The management also deposed that

it was not providing any kind of statutory benefits to the

employees and since the respondent workman was never their

employee, therefore, there was no question of any kind of legal

facilities being provided to him. It is a settled legal position

that the burden to prove the relationship of employee and

employer rests on the workman. It would be pertinent to refer

to the judgment of the Apex Court in Workmen of Nilgiri

Coop.Mkt Society Ltd vs. State of Tamil Nadu & Ors.

(2004)3SCC 514 where it very clearly reiterated the said

principle as:

"47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.

48. In N.C. John v. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Ors. : (1973)ILLJ366Ker , the Kerala High Court held:

"The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship "

49. In Swapan das Gupta and Ors. v. The First Labour Court of West Bengal and Ors. 1975 Lab. I.C. 202 it has been held:

"Where a person asserts that he was a workmen of the Company, and it is denied by the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company but of some other person."

50. The question whether the relationship between the parties is one of the employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse."

Applying the aforesaid principle to the present case let me

examine as to whether the respondent workman succeeded in

discharging the initial onus of proving the relationship with the

petitioner management of employer and employee. The

respondent workman has placed on record ESI Declaration

form as well as the ESI Card. The same were proved by the

respondent workman as WW 2/1 & WW 1/5. The respondent

workman had summoned the witness from the office of the ESI

who in his evidence duly proved the said declaration form by

producing the original declaration register. The testimony of

the said witness remained unimpeached and unrebutted as no

suggestion was given by the petitioner management so as to

challenge the genuineness or correctness of the said

declaration form. So far the name of the petitioner firm is

concerned, the said declaration form bears the stamp in the

name of PARKASH SPARES with the correct address. Merely

because the stamp affixed on the declaration form does not

spell out the correct spellings of the name of the petitioner

firm, the same would not discredit the genuineness of

declaration form. So far the particulars of the employment

disclosed in the said form are concerned, the name in the

relevant column of department is mentioned as „workshop‟

while in the column of nature of work „Petrol Pump‟ has been

mentioned. It is not in dispute that the petitioner has been

carrying on the business of the petrol pump. The declaration

form has been filled up in English while the respondent

workman had signed in Hindi which clearly shows that the said

declaration form was not filled by the respondent himself.

8. It is a settled legal principle that this court while

exercising its jurisdiction under Article 226 of the Constitution

of India, would not reappreciate the findings of facts. It would

be pertinent here to refer to the judgment of the Apex Court in

Management of Madurantakam, Co-operative Sugar Mills

Ltd. Vs. S.Vishwanathan (2005)3 SCC 193 where it was

held that:

"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the

Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."

Hence this court would not reappreciate the findings of fact in

the case at hand, more particularly when the petitioner never

cross-examined either the respondent workman or the witness

from the ESI Department with regard to the discrepancies now

being canvassed by the counsel for the petitioner. It is not only

the declaration form alone but the respondent had also proved

on record the ESI Card. Hence, once the witness had come

from the office and has proved the said declaration form it is

difficult to believe that any kind of forgery or fabrication was

carried out by the respondent before the Labour Court, that too

in collusion with the officials of ESI Department.

8. Hence, there is no merit in the present petition and

the same is hereby dismissed.

February 26, 2010                        KAILASH GAMBHIR,J
pkv