Delhi High Court
Jagannath & Ors vs Laxmi Auto Agency on 22 July, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd July, 2011
+ W.P.(C) 5281/2008
JAGANNATH & ORS ..... Petitioners
Through: Mr. Y. P. Sharma, Adv.
Versus
LAXMI AUTO AGENCY ..... Respondent
Through: Ms. Mamta Tandon, Adv. for Mr.
V.K. Tandon, Adv.
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 five petitioners workmen by this petition impugn the award dated
5th April, 2008 of the Industrial Adjudicator on the following reference:
"Whether the services of workmen whose names appear
in Annexure „A‟ have been terminated illegally and/or
unjustifiably by the management, and if so to what sum of
money as monetary relief alongwith consequential
benefits in terms of existing laws/Govt. Notifications and
to what other relief are they entitled and what directions
are necessary in this respect?"
against the petitioners workmen and holding that there was no
relationship of employer-employee between the petitioners workmen and the
respondent.
2. At the outset, it may be stated that the petitioners workmen have filed
CM No.5467/2011 under Order 1 Rule 10 of the CPC for impleadment of
one Shri Moti Lal Jain as the respondent no.2 to the said petition. The writ
petition as already filed impleads the respondent M/s Laxmi Auto Agency
through both Shri Moti Lal Jain and Shri Chhaggan Mal Jain. However in
response to the notice issued by this Court M/s Laxmi Auto Agency has
appeared through Shri Chhaggan Mal Jain only. The petitioners workmen
claim that since Shri Moti Lal Jain and Shri Chhaggan Mal Jain were/are
partners of the respondent M/s Laxmi Auto Agency, need is felt to implead
the said Shri Moti Lal Jain also.
3. So was the case of the petitioners workmen before the Industrial
Adjudicator also. The case of Shri Chhaggan Mal Jain before the Industrial
Adjudicator was that he was the sole proprietor of M/s Laxmi Auto Agency
and Shri Moti Lal Jain had no status therein. Sh. Moti Lal Jain was not
impleaded in his individual capacity before the Industrial Adjudicator also
and did not appear before the Industrial Adjudicator. The petitioners
workmen did not lead any evidence before the Industrial Adjudicator to
show that Shri Moti Lal Jain had any locus in the respondent M/s Laxmi
Auto Agency. As aforesaid, the reference made to the Industrial Adjudicator
also has not referred to any person on behalf of the management. Hence, at
this stage need is not felt to entertain this application when the contention of
the counsel for the petitioners himself is that Sh. Moti Lal Jain is sought to
be impleaded to throw further light on the matter. The stage for throwing
any light in the matter has long past gone and this Court is now exercising
only the powers of judicial review.
4. The stand of Shri Chhaggan Mal Jain before the Industrial
Adjudicator was that there was no relationship whatsoever with the
petitioners workmen; that while the petitioners workmen claimed to have
been employees of a manufacturing activity, the respondent was a trading
firm. The only proof placed by the petitioners workmen of their employment
with the respondent being photographs showing them to be working on some
machines, were admittedly not bearing the name of the business or place
where the petitioners were working (as admitted by the petitioners workmen
in their cross examination) and it was the case of the respondent that the
same did not pertain to his business or place.
5. The Industrial Adjudicator placing reliance on (i) Nilgiri Coop.
Marketing Society Ltd. v. State of Tamil Nadu 2004 LLR 351; (ii) Range
Forest Officer v. S.T. Hadimani 2002 (93) FLR 179 (SC); (iii) Rajasthan
State Ganganagar S. Mills Ltd. v. State of Rajasthan 2004 (4) LLN 845;
(iv) Municipal Corporation, Faridabad v. Siri Niwas 2004 LLR 1022 (SC):
2004 (4) LLN 785; (v) Madhya Pradesh Electricity Board v. Hariram 2004
(4) LLN 834; 2005 LLR 1 (SC); (vi) Surendranagar District Panchayat v.
Jethabhai Pitamberbhai 2006 LLR 250 has held that the burden to establish
the relationship of employer and employee is on the workman and held the
petitioners workmen in the present case to have failed to discharge the same.
6. The aforesaid is a finding of fact not ordinarily interfererable as in
appeal, unless shown to be perverse or not based on material on record. The
counsel for the petitioners workmen herein has candidly admitted that the
petitioners workmen have no proof of employment with the respondent. He
has not been able to show any evidence which may have been ignored by the
Industrial Adjudicator so as to call the finding as foresaid to be perverse.
7. The Industrial Adjudicator in the absence of any relationship of
employer and employee held the petitioners workmen to be not entitled to
any relief against the respondent.
8. The counsel for the petitioners workmen refers to the grounds taken in
the writ petition where it is urged that Shri Moti Lal Jain was also concerned
with the work where the petitioners workmen were employed. However as
aforesaid the petitioners workmen failed to establish/prove the same before
the Industrial Adjudicator. Attention is also invited to the ground 'G' where
it is stated that the petitioners workmen in their evidence had stated that they
were being paid emoluments and being made to sign registers. However
neither was any such document summoned from the respondent nor does a
perusal of cross examination of Shri Chhaggan Mal Jain show that he was
confronted therewith.
9. There is thus no merit in the petition; the same is dismissed. No order
as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 22, 2011
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