Tilak Raj vs Aman Kumar @ Amar Kumar
2014 Latest Caselaw 228 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on January 13, 2014
+                          W.P.(C) 01/2014
TILAK RAJ                                            ..... Petitioner
                     Represented by:    Mr.Rajeev Kumar with
                                        Mr. Saurabh Kumar, Advocates
                     Versus
AMAN KUMAR @ AMAR KUMAR                               ..... Respondent
           Represented by: None.
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V. KAMESWAR RAO, J. (Oral)

CM Appl. No.07/2014 (for exemption) Allowed, subject to just exceptions.

The application stands disposed of.

WP(C) No.01/2014

1. In this writ petition, the petitioner has challenged the Award dated July 04, 2013 passed in I.D. No. 294 of 2009 by the Labour Court, whereby the Labour Court has in the facts and circumstances of the case, keeping in view that the respondent-workman has sustained permanent injury awarded a lump sum compensation of Rs. 2,90,000 (Rupees Two Lakhs Ninety Thousand only) in lieu of reinstatement with back wages.

2. It was the case of the respondent that he was engaged with the petitioner for the last one and half years before the filing of the claim as a Blowing Machine-man. The last drawn salary was Rs. 3000/- per month. He would state that he was deprived of his legal facilities i.e. appointment letter, salary slip, leave book, overtime, Casual Leave, ESI, PF etc. It has been submitted by the respondent that the petitioner was

engaged in the manufacturing of toys. It was his case that the worker who worked on the injection machine was on leave and he was forced to work on the said machine despite refusal by him as he did not know how to operate the machine.

3. It was also his case that on February 24, 2005, when he started operating the injection machine, he met with an accident in which all the fingers except forefinger and the thumb of his left hand got amputed. He got treatment at Ram Manohar Lohia Hospital and was issued 50% disability certificate from there. A FIR was registered at P.S. Sarai Rohella. After recovery, when the respondent demanded the accidental compensation from the petitioner, he was illegally terminated without any notice or service compensation.

4. The petitioner filed a reply to the claim petition. He denied the existence of relationship of employer-employee between the respondent and him. He also denied the respondent working with him. He also denied that he was running any factory. In fact, he denied that the respondent had not met with an accident while working on injection machine. He also denied that there was no injection machine in the premises. It is his case that the respondent was not terminated by him. The following two issues were framed by the Labour Court. They are; (1) Whether there existed relationship of employer-employee between the management and the workman, and (2) whether the workman is entitled to any relief, as claimed.

5. The workman appeared in the witness box and filed his evidence by way of affidavit Ex.WW1/A. The true translation of the same is annexed as Page 75 of the Paper Book. He also exhibited the documents Ex. WW1/1 to 1/11. The documents exhibited by the respondent are

following:

i) Documents relating to his treatment (Ex.WW1/1 and WW1/2),

ii) Disability Certificate (Ex.WW1/3),

iii) FIR and criminal complaint & concerned documents (Ex.WW1/4),

iv) Demand Letter dated 07.06.2005 (Ex.WW1/5),

v) Postal Receipt (Ex.WW1/6),

vi) Acknowledgment Receipt (Ex.WW1/7),

vii) UPC Receipt (Ex.WW1/8),

viii) Demand Notice dated 17.09.2005 (Ex.WW1/9),

ix) Copy of the Receipt (Ex.WW1/10),

x) Claim before the Labour Commissioner (Ex.WW1/11)

6. The respondent appeared in the witness box and was cross examined by the representative appearing for the petitioner. The same is reproduced as under:

"It is wrong to suggest that I am not residing at Jhuggi No. 899, Railway Colony, Shakur Basti, Rani Bagh, Delhi for the last 3-4 years. I have worked with the management w.e.f. 2004-05. So far as I remember, I have started working with the management in the month of January or February 2004 till 16.06.05. I do not have any documentary proof that I have worked with the management. Vol. The management never given any written documents. The name of the person in whose place I was appointed on the machine by the management was Rizwan. Against the incident in which my left hand was chopped off in the machine, the case was registered against Sh. Tilak Raj, owner of the management. The criminal case is pending at Tis Hazari Courts. It is wrong to suggest that no firm under the name and style of M/s. Tilak Raj & Co. ever existed or is in existence at 315/10, Basement, Daya Basti. It is wrong to suggest that no FIR was been lodged against Mr. Tilak Raj. It is wrong to suggest that I never

worked with the management. It is wrong to suggest that I have filed the false claim against Sh. Tilak Raj. It is wrong to suggest that I sustained injuries at another place in another incident".

7. The petitioner filed his evidence by way of an affidavit. I note he has not exhibited any documents in support of his case. Even the Labour Court has not recorded filing of any document by the petitioner. During the cross examination of the petitioner on December 10, 2012, the following Court questions were put to him:

"Q. Is it correct you stood surety before police for your son Mr. Radha Saran in case FIR No. 80/05 U/s 283/337 IPC and you have executed surety bond at page 12 of Ex.WW1/4 which bears your signature at point A?

Ans. Yes and I also admit my signature at point A

Q. Is it correct you again stood surety for your son and executed surety bond on page no. 31 of Ex.WW1/4 which bears your signatures and thumb impression at point A?

Ans. Yes. I admit my thumb impression and my signatures also.

Q. Is it correct that you have filed your affidavit on page no.32 alongwith your surety bond which bears your thumb impression and signatures encircled at point A and B?

Ans. Yes. I also admit my signatures and thumb impression.

Q. Now, I put it to you that you have deposed on oath that you are not aware of registration of FIR against your son and filing of chargesheet and pendency of criminal matter against your son. Under what circumstances, you have shown your

ignorance?

Ans. I do not know that I did and do not know about the affairs of the factory of my son.

Q. Are you educated?

Ans. No.

Q. Do you sign in English?

Ans. I know signing only because I have learnt to sign.

Since the court questions have been put to the witness the AR for management is afforded opportunity to re- examine this witness to which AR has denied. Accordingly, AR for workman is also afforded opportunity to cross examine the witness to which he has also denied. Accordingly, the evidence of this witness stands concluded."

8. On issue No. 1, the Labour Court has come to the following findings:

"From careful scrutiny of the evidence of MW-1 Sh. Tilak Raj, it reflects that this witness, during cross examination, has intended to conceal certain material facts viz. registration of FIR, the pendency of the criminal case etc. against his son for the imputation of the hand of the workman in the machine of the management. But when the court questions were put to this witness, the witness has admitted the fact of registration of FIR etc. and signing of certain documents viz. the surety bond etc. in criminal matter. It transpires that a case was registered on the injuries sustained by the workman during the course of his duties. The management has time and again denied the fact that the workman never remained its workman. Now, the question arises that if the workman was not working with the management, then what was the necessity of taking the injured workman to the hospital by the son of the

proprietor of the management and why the FIR was lodged in this matter. The entire facts and circumstances reflect that the preponderance of probability shows that since the workman was working with the management and sustained injuries during the course of his employment that is why he was taken to hospital and the FIR was registered against the management. This discussion leads to the conclusion that the workman was regular employee of the management."

9. The above findings reveal that the petitioner concealed certain material facts like registration of FIR, pendency of criminal case against his son for amputation of fingers of the workman in the machine. It is only on the court questions the witness has admitted the fact of registration of FIR and signing of certain documents with surety bond etc. in criminal matter. The respondent was handicap, as he was not given any document, regarding employment. In the absence of any documents relating to the employment with the respondent, the Labour Court, on the principle of preponderance of probability, had come to a conclusion that the workman was working with the petitioner and sustained injury during the course of employment.

10. What is urged before me is that the son of the petitioner was running the business. This submission was being urged on the basis of certain documents which were not placed before the Court below. Such a case was not advanced before the Labour Court. Nothing precluded the petitioner and his son to come forward and accept this fact before the Labour Court. Attempt has been made to deny the liability of an illegal termination.

10. Keeping in view the fact that the petitioner has suffered 50% disability and the incident relates back to the year 2005 and relationship having been established, I do not think that it is a fit case for this court to

interfere with the impugned order, being a plausible view. The writ petition is accordingly dismissed.

CM Appl. No.06/2014 (for stay) In view of the dismissal of the writ petition, the application for stay also stands dismissed as infructuous.

(V.KAMESWAR RAO) JUDGE

JANUARY 13, 2014 akb