M/S Packbill Enterprises vs Dinesh Kumar Mishra @ Pappu
2015 Latest Caselaw 4176 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 4895/2015 & C.M.No.8862/2015 (for stay)

                          Judgment reserved on: 19.05.2015

%                         Judgment pronounced on: 25.05.2015

      M/S PACKBILL ENTERPRISES                  ..... Petitioner
                   Through: Mr. Amarjit Singh Sahni, Advocate
                            along with the petitioner
                   versus

      DINESH KUMAR MISHRA @ PAPPU                           ..... Respondent
                  Through: Nemo.

      CORAM:
      HON'BLE MS. JUSTICE DEEPA SHARMA

      JUDGMENT

1. Vide the present writ petition the petitioner has challenged the award

dated 01.07.2014 passed by the authority under Section 21 of the Delhi

Shops and Establishment Act, 1954 (hereinafter referred to as 'the Act')

whereby directions have been issued to the petitioner to deposit a sum of

Rs.52,000/- along with compensation of Rs.100/- which amount was

towards the unpaid earned wages of claimant Dinesh Kumar Mishra @

Pappu. The contention of the petitioner is that it was an ex-parte award; that

signatures of its manager Mr.Sandeep were manipulated on the summon

dated 10.04.2013; that the petitioner was not aware of such an award and

they came to know of it only in February, 2015 when he had received

attachment warrants. It is further submitted that the respondent had worked

as a driver with them only for 10-12 days and he had never worked for the

petitioner with effect from 01.07.2012 to 10.11.2012 at the monthly salary

of Rs.12,000/-. It is further submitted that he was found taking drugs and in

drunkard condition and was expelled from the job. The respondent along

with workers of Karamsheel Mazdoor Sangarh Union (Regd.) came to the

petitioner demanded a sum of Rs.20,000/- as compensation and threatened

with false court cases in case of refusal. He had also filed a claim petition

before the Labour Court, Karkardooma, Delhi, seeking his reinstatement

with full back wages and he had not disclosed in the said petition about this

ex-parte award passed in his favour. It is further submitted that no one

would believe that if a driver is not paid for such a long period, his salary, he

would continue to work and the allegations itself show that he had filed false

and frivolous claim with malafide intention. It is further submitted that ex-

parte award has not been passed following all rules and regulations under

the law and the same is illegal, arbitrary, unjustified and unwarranted and is

liable to be set aside.

2. I have heard arguments of Mr.Amarjit Singh Sahni, learned counsel

for the petitioner.

3. Learned counsel for the petitioner has submitted that the award is bad

because the learned labour court had believed the oral testimony of the

respondent and no document showing the relationship and no other

document showing that he had worked with the petitioner, had been placed

on record. It is submitted that believing bald statement of the respondent

and giving its findings is contrary to the established provisions of law.

Reliance has been placed on the findings in Titan Industries Limited vs.

Kishan Lal: 137 (2007) DLT 566 and Sukhram & Others vs. Guptaji Tent

House and Another: 204 (2013) DLT 462.

4. It is argued that in Sukhram's case (supra) this court has clearly held

that mere bald statement of petitioner is not sufficient to prove the employer

and employee relationship between the parties and something more in the

shape of document i.e. appointment letters, payment vouchers, etc. is

required to be proved on record to indicate that the workers had been in the

employment of respondent and worked with it continuously for a period of

240 days in a year preceding date of termination. It is further argued that in

Titan Industries Limited's case (supra) this court has also held that burden

was upon the petitioner to prove that he was in the employment of the

respondent and for that purpose he was required to produce on record the

appointment letter, any document to ascertain that he was on the rolls of the

petitioner and in view of this deficiency in the evidences of the workman,

onus could not be shifted upon the management.

5. It is submitted that in view of this, the reliance of the court on the oral

testimony of the workman/respondent and giving its finding is contrary to

the established principles of law.

6. I have given due consideration to the case laws relied upon and

supplied by the learned counsel for the petitioner. In Titan Industries

Limited's case (supra) the facts were that the workman had claimed to be an

employee of the Titan Industries which fact was denied by the Titan

Industries and contention was raised that the workman was a private

employee of the Regional Manager. In the light of these facts this court had

given its finding that the oral testimony of the workman was rebutted by oral

testimony of the management witness was not sufficient to prove

relationship. In the present case, as is apparent from the award, the oral

testimony of the workman/respondent was not rebutted by any evidence on

record. The evidence of the workman remained uncontradicted since the

petitioner had chosen to stay away from the proceedings of that court. Thus,

the findings in that case which were given on a different set of facts, is not

relevant for the purpose of this case.

7. From the facts of Sukhram's case (supra), it is apparent that the

management in that case had contested the plea of the workers and the court

was not confronted with the situation where the oral testimony of the

workers remained unrebutted. Principles enumerated in Sukhram's case

(supra) also have no application to the present case.

8. Moreover, in the present case the relationship of employer and

employee is admitted by the petitioner. In the present writ petition, the

petitioner has categorically stated that the respondent had worked as a driver

with the petitioner. The only plea taken was that he had worked only for 10-

12 days. The date of employment is not disclosed in the writ petition.

While it is contended that he was expelled from the job, date of such

expulsion is also not given on record. The only plea of the petitioner is that

the respondent had never worked during the period from 01.07.2012 to

10.11.2012. No such contention had been raised by the petitioner before the

concerned court. This contention requires the findings on the facts and thus,

ought to have been raised before the concerned court. It is also not the case

where the petitioner had been taken by surprise. It is apparent from the

impugned award that the workman/respondent before moving an application

under Section 21 of the Act, had filed a police complaint dated 12.11.2012

exhibited as Ex.WW1/1, sent a demand letter to the petitioner dated

12.11.2012 exhibited as Ex.WW1/3, duly sent vide Ex.WW1/4, also filed a

complaint dated 16.11.2012 in Labour Office, exhibited as Ex.WW1/5. The

workman had also proved on record the report of the labour inspector dated

22.07.2013 as Ex.WW1/6. This shows that immediately after 10.11.2012

when his services were allegedly terminated without paying the salary etc.,

the workman/respondent had been taking steps towards recovery of his

unpaid wages as well.

9. The next contention of the petitioner is that signatures of its manager

Mr.Sandeep were manipulated on the summons dated 10.04.2013. This

court cannot enter into this question whether signatures of Mr.Sandeep,

manager of the petitioner were manipulated or not because this issue could

have been raised by the petitioner before the labour court by moving an

appropriate application but he had chosen to file the present writ petition.

The determination whether the signatures were manipulated or not, needs

proof of facts on record. Moreover, it is apparent from the impugned order

that the concerned court had not acted in haste. Summons dated 10.04.2013

was for appearance on 02.05.2013 despite that the court had adjourned the

matter for the appearance of the petitioner for 12.06.2013, 26.08.2013 and

05.09.2013. It is not in dispute that the address of the petitioner on the

process is correct. There is presumption under the General Clauses Act that

when a letter has been sent to the addressee bearing the correct address, the

same must have reached to the addressee. No doubt, such a presumption is

rebuttable but there is nothing on record which can show that the process

had never reached the addressee. As discussed above, it was received by the

Manager of the petitioner whose name is Mr.Sandeep. It is not the

contention of the petitioner that the name of petitioner's manager is not

Mr.Sandeep.

10. From the above discussion, it is apparent that there is no infirmity or

illegality in the impugned order dated 01.07.2014. The writ petition has no

merit and the same is dismissed in limine.

C.M.No.8862/2015 (for stay)

11. In view of the dismissal of the writ petition, this application has

become infructuous and the same is dismissed.

DEEPA SHARMA (JUDGE) MAY 25, 2015/rb