Asim Chowdhury vs Swagatam Tours And Travels (P) Ltd
2014 Latest Caselaw 6144 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment delivered on 25th November, 2014

+                                 W.P.(C) 805/2013
         ASIM CHOWDHURY                                     ..... Petitioner
                  Represented by : Mr.S.Mukherjee, Adv.
                  Versus
    SWAGATAM TOURS AND TRAVELS (P) LTD ..... Respondent

Represented by : Mr. Vijay Jaiswal, Adv.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J (ORAL)

1. Vide the present petition, the petitioner has assailed the award dated 01.04.2006, whereby the claim of the petitioner has been dismissed by the Labour Court in I.D.No.103/1995.

2. Vide order dated 21.07.1995 the reference was sent on the following

terms:

"Whether the services of Sh. Asim Chowdhary 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?"

3. The petitioner/workman filed statement of claims and stated that he was working with the respondent/management as Driver w.e.f. 16.11.1992 and his last drawn wages was Rs.1000/- per month. The Management adopted anti-labour and unfair labour practices such as denial of minimum

wages and when the petitioner/workman joined the New Delhi Mazdoor Union and demanded the minimum wages through Union. The Management got annoyed. Accordingly, terminated his services illegally on 07.01.1994, without giving any notice and without offering retrenchment compensation.

4. Being aggrieved, the petitioner served a demand notice on 27.01.1994 whereby demanded his reinstatement with continuity of service and full back wages but Management did not concede the demands of the petitioner.

5. The respondent/Management filed written statement while taking preliminary objections that there exist no relationship of employer and employee between the parties. The petitioner was not an employee of Management at any point of time. However, the workman was working as a driver with a partnership firm, namely, M/s Varun Travels, 1808, Ahinsa Vihar, Sector-9, Rohini, New Delhi. Thus, the Management denied all the allegations of the workman alleged by him in the claim statement. It is further stated that Management came to know that the workman after leaving/abandoning his job with M/s Varun Tours has been gainfully employed in a firm having office at NOIDA.

6. Based on the pleadings of the parties, vide order dated 09.09.1997, the following issues were framed:

"(i) Whether there exist relationship of employer and employee between the parties?

(ii) Whether the workman was employed as a driver with a partnership firm M/s Varun Travels as alleged in preliminary objection in the W.S.?"

7. The petitioner/workman examined himself as WW-1 and Management examined one Sh. Sanjeev Mehra as MW-1.

8. Mr.S.Mukherjee, learned counsel for the petitioner/workman submits that the Management has shifted the burden upon the workman to prove that he was working with M/s Varun Travels whereas the respondent/Management failed to prove through any witness or documentary proof that he was not working with the respondent/ Management. However, the respondent/Management was to prove that he was working as a driver with M/s Varun Travels. The respondent/Management had a contract with the afoaresaid Travels. The petitioner was working as a driver and used to pick up the clients of the Management. The respondent/Management had paid some advance amount and imprest amount on two occasions, but the learned Tribunal has ignored all these facts.

9. The fact remains that as admitted in the cross-examination the petitioner had not placed on record any documentary proof to show that he was employed with the respondent/Management since 16.11.1992. He has failed to produce any document to establish that he was in a regular employment of the respondent/management working as driver. As argued by learned counsel for the petitioner that in the absence of any documentary proof in possession of the petitioner, the burden should have been shifted upon the Establishment to establish that he was working as a driver with M/s Varun Travels.

10. The learned Tribunal opined on the aforesaid issue that the Ex.WW- 1/1 to WW-1/5 does not prove that the petitioner/workman was employee of the respondent/Management. He failed to establish that he was a regular employee of the Management and working as employee. No document proof has been filed by the respondent/Management stating that he was

driver of M/s Varun Travels.

11. I do not find any substance in the argument of the learned counsel for the petitioner that the case had to be proved by the respondent/Management by producing documents from M/s Varun Travels. It is settled law that one has to stand on its own legs, however, if some of the documents were not in possession of the petitioner/workman, then he should have taken steps as per law to place on record, which he failed to do so. It is also admitted fact that he does not have any appointment letter in his possession. He does not have salary slip paid by the respondent/Management. The only document filed by the petitioner to show that he was working as driver in a car bearing No.DL 1Y-0325, the photographs of which taken on 29.05.1993 are at page

72. However, at page 73, the registration of the vehicle is on record which shows that vehicle was registered on 15.12.1994 after termination of the petitioner on which the petitioner is relying upon. The petitioner has failed to establish that the respondent was carrying previously the same number on other vehicle and carrying the same on the vehicle mentioned above which was purchased in the year 1994. Moreover, the photograph does not establish employer and employee relationship.

12. In view of the above discussion, I find no merits in the instant petition.

13. The petition is dismissed with no order as to costs.

SURESH KAIT (JUDGE) NOVEMBER 25, 2014 mr/sb