M/S Sheiba Vision Exports Pvt. ... vs Inder Dev Prasad
2011 Latest Caselaw 3333 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 14th July, 2011

+                           W.P.(C) No.4779/2008

%        M/S SHEIBA VISION EXPORTS PVT.
         LTD. ETC.                                    ..... Petitioners
                       Through: Mr. Vivek Vidyarthi, Adv.

                                      Versus

    INDER DEV PRASAD                   ..... Respondent
                 Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                        NO
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                NO

3.       Whether the judgment should be reported               NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 8th February, 2008 of the

Industrial Adjudicator on the following reference:

"Whether Sh. Inder Dev Prasad has left the job after full & final settlement of his accounts or his services 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?"

and granting the relief to the respondent workman of reinstatement with

consequential benefits and continuity of service but without any back wages.

2. Though this writ petition was filed in or about May, 2008 but

adjournments were sought for addressing on admission from time to time till

19th January, 2009 when notice was directed to be issued to the respondent

workman. The summons sent to the respondent workman came back

unserved with the report that the address was not correct. The petitioner

thereafter furnished fresh address of the respondent workman on which the

respondent workman was reported to have been served for 21 st December,

2010. None appeared for the respondent workman on that date. None has

appeared for the respondent workman today also. The respondent workman

is thus proceeded against ex parte. The counsel for the petitioner has stated

that the matter be decided on the basis of paper book filed.

3. The award also notices that the respondent workman had failed to

appear for the purposes of addressing arguments before the Industrial

Adjudicator. This Court also has not stayed the operation of the award. It is

not the case of the petitioner that the respondent workman has approached it

for reinstatement and / or for implementation of the award. Nearly three and

a half years have elapsed. It appears that the respondent workman is no

longer interested.

4. The claim of the respondent workman before the Industrial

Adjudicator, besides against the petitioner was also against M/s Sheiba

Opticals with the same address as that of the petitioner. The respondent

workman had claimed that he had been working with the petitioner and the

said M/s Sheiba Opticals as a Machine Man with effect from 1 st April, 1974

and his last drawn wages were `3,000/- per month; that neither any

appointment letter was issued to him nor his service record was properly

maintained; that the employers were indulging in unfair labour practice by

taking his signatures on blank papers and different vouchers; that his

services were illegally terminated on 27th November, 1999 and his earned

wages for the months of October and November, 1999 were also not paid;

the demand notice dated 17th January, 2000 having remained uncomplied, he

raised the dispute and on which reference as aforesaid was made on 25 th

July, 2000.

5. M/s Sheiba Opticals failed to appear before the Industrial Adjudicator.

The petitioner herein denied relationship of employer employee with the

respondent workman. It was the case of the petitioner that the respondent

workman was a professional Grinder of optical glasses and used to grind

glasses of spectacles for the employer on piece rate basis and was paid

accordingly; that he had gone to his village on 25 th November, 1996 for

several months and started working again in June, 1997 on work rate basis

and so worked with the petitioner till 13th September, 1999 when he left after

taking his full and final dues.

6. Needless to state that the respondent workman in his rejoinder filed

before the Industrial Adjudicator denied the aforesaid version of the

petitioner.

7. The Industrial Adjudicator in the award, on the basis of the evidence

led before him held:

(i) That the onus was on the petitioner to prove that the respondent

workman who was admittedly working for it, was so working

on piece rate basis;

(ii) The Managing Director of the petitioner had deposed that all of

its workers were working on piece rate basis only; he had

admitted that the petitioner had not filed any Payment Register

on record to show whether the respondent workman was getting

payment on monthly basis or on piece rate basis; that though he

relied upon payment records of the respondent workman stated

to have been maintained by the petitioner but when asked in

cross examination replied that he had never seen the account

produced earlier and therefore could not depose about the same;

he admitted the signatures on the certificate issued by the

petitioner in the name of the respondent workman;

(iii) The other three witnesses produced by the petitioner though

also deposed that the respondent workman was working on

piece rate basis but there were glaring contradictions between

their evidence and the evidence of the Managing Director of the

petitioner;

(iv) That though two of the said witnesses of the petitioner also

claimed to be working for the petitioner on piece rate basis but

affirmed that they were beneficiaries of ESI; no explanation

was offered as to why the said two workers, claiming to be

working on piece rate basis, were shown as workmen for the

purposes of ESI and the respondent workman was not;

(v) That no records which the petitioner ought to be maintaining in

the regular course of business viz. Employee Register,

Attendance Register, Accounts Book, ESI Returns, Payment of

Wages Register etc. were produced;

(vi) That the certificate produced by the respondent workman and

on which signatures were admitted by the Managing Director of

the petitioner certified that the workman had been working with

the petitioner since 1997 and it was not stated therein that he

was not a regular employee but was working on piece rate

basis;

(vii) That the petitioner relied upon vouchers purportedly signed by

the respondent workman showing payment to the respondent

workman on account of gratuity and full and final settlement

under labour laws; if the respondent workman was not a

employee, such payments were inexplicable.

8. The Industrial Adjudicator thus held existence of relationship of

employer employee between the respondent workman and not only with the

petitioner but also with M/s Sheiba Opticals since the witnesses of the

petitioner had deposed that they as well as the respondent workman used to

work for both the petitioner and M/s Sheiba Opticals.

9. The Industrial Adjudicator also held that the petitioner had failed to

prove that the respondent workman had fully and finally settled his accounts.

It was held that though vouchers in that regard were produced but not

supported by other records.

10. The Industrial Adjudicator however denied the relief of back wages to

the respondent workman for the reason of the respondent workman having

not deposed that he had remained unemployed and the petitioner having

proved photographs showing the respondent workman to be pulling a cart.

11. The aforesaid would show that the findings of the Industrial

Adjudicator are factual in nature. The Legislature has not provided for an

appeal against the award of the Industrial Adjudicator. This Court cannot in

the garb of judicial review under Article 226 of the Constitution of India

exercise appellate powers. Such findings of fact can be interfered with only

if shown to be perverse or based on no material whatsoever.

12. A perusal of the grounds urged in the writ petition does not make out

any such case. Though the petitioner has alleged that it had filed Wage

Registers before the Industrial Adjudicator but a perusal of the evidence of

the Managing Director of the petitioner does not show any reference thereto.

Without such Registers even if filed, being proved, no reliance can be placed

thereon.

13. None of the other grounds urged also make out any case of perversity

or of the factual findings returned being without any basis. I have perused

the evidence and the documents and I am satisfied that the factual findings

aforesaid are not such that can be interfered with.

14. The writ petition therefore fails and is dismissed.

RAJIV SAHAI ENDLAW (JUDGE) JULY 14, 2011 'gsr'..