Sh. Prem Nath Yadav vs Sh. Chandra Bose & Others
2010 Latest Caselaw 371 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI
              W.P. (C ) No. 16519/2006

                     Judgment pronounced on : 22.01.2010


Sh. Prem Nath Yadav                     ......Petitioner
                  Through: Mr. Manoj Kumar, Advocate


                          Versus

Sh. Chandra Bose & others                          ..... Respondents

                          Through: Mr. Rajiv Mehra, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                        Yes

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

KAILASH GAMBHIR, J.(ORAL)
*

1. By this petition filed under Article 226 of the Constitution

of India, the petitioner/workman seeks quashing of the award dated

06.07.2006 passed by the Labour Court in ID No.343/2006 whereby

the reference was answered against the petitioner workman.

2. Brief facts relevant for deciding the present petition are that the

petitioner workman has been working with the respondent no.3 since

5.5.95. It is alleged by the petitioner that the respondent no.3 had not

been providing him with legal facilities such as appointment letter,

casual leave, etc. and had obtained his thumb impression on blank

vouchers and papers. Thereafter the respondent no.3 terminated the

services of the petitioner workman on 2.2.2002 and the petitioner

sent a demand notice on 16.2.2002. Receiving no response of the

same, the petitioner raised an industrial dispute bearing ID No.343/06

where the reference vide award dated 6.7.06 was answered against

the workman. Feeling aggrieved with the said award of the Labour

court, the present petition has been preferred.

3. Counsel for the petitioner submitted that the

petitioner/workman was a permanent employee of the respondent

No.3 Management and services of the petitioner were terminated by

the respondent Management without complying with the mandate of

Section 25-F of the Industrial Disputes Act. Counsel further submitted

that the Labour Court ignored the documentary evidence placed on

record by the petitioner which clearly proved the employment of the

petitioner with the respondent Management. Counsel further

submitted that the petitioner had also moved an application before

the Labour Court to summon various documents from the respondent

Management such as Wage Register, balance sheet, ledger and

vouchers, cashbook, day book etc. but the management failed to

produce the said records and even the Labour Court did not decide

the said application of the petitioner causing serious prejudice to the

rights of the petitioner. Counsel thus contended that the petitioner

placed enough material on record to prove his relationship of a

employer and employee with the respondent management but since

no records were placed by the respondent management even after the

said application was filed by the petitioner, therefore the Labour

Court should have drawn adverse inference against the respondent

management instead of disbelieving the case of the petitioner who

proved on record his employment with the respondent management

since 05.05.1995.

4. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent contended that no illegality or

perversity in the impugned award has been pointed out by the

petitioner and therefore this court while exercising its jurisdiction

under Article 226 of the Constitution of India will not interfere with

the findings arrived at by the Labour Court just to reappreciate the

finding of facts.

5. I have heard counsel for the parties at considerable length

and perused the records.

6. It is a settled legal position that the onus lies on the

workman to prove his relationship with the employer as that of

employee and employer. The documents placed on record by the

petitioner comprising of bills, challans, notices, etc. are not the

documents which could prove the relationship of the petitioner with

the respondent as that of an employee and employer. It could at the

most have proved the fact that the petitioner had received the goods

on behalf of the management when the delivery of the goods were

made by the suppliers at the shop of the management or because of

the address furnished by the petitioner himself, the Dak was received

by the petitioner at the same address. For establishing a relationship

of employer and employee something more cogent and convincing is

required but no such documentary evidence was placed and proved by

the petitioner. It would be pertinent here to refer to the judgment of

the Apex Court in Workmen of Nilgiri Coop. Marketing Society

Ltd. vs. State of Tamil Nadu (2004)3 SCC 514 where it was held

that :-

"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."

7. Taking a note of the aforesaid legal position, I do not find any

illegality or perversity in the findings of the Labour Court wherein the

court observed that these documents do not help the workman to

prove the fact that he was working with the Management. So far the

contention of the counsel for the petitioner that the petitioner had

moved an application to summon the muster roll record, attendance

register and other records of the respondent management and that

the said application was not decided by the Ld. Labour Court is

concerned, I wonder if such an application was moved by the

petitioner then why the workman did not press his application or take

other remedial measures before the passing of an award. The

management in their evidence clearly proved the fact that the

petitioner was doing the job of putting strips on bags of various

shopkeepers in the area and was not in the sole employment of the

respondent. Counsel for the petitioner has failed to point out any

infirmity or illegality in the order passed by the Ld. Labour Court.

7. Thus I do not find any merit in the petition and the same is

dismissed.

January 22, 2010                     KAILASH GAMBHIR,J
pkv