Aditya Narayan Yadav vs Aggarwal Plastics & Ors.
2018 Latest Caselaw 915 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                          Date of Judgment: 07.02.2018
+                   W.P. (C) 2228/2011
        ADITYA NARAYAN YADAV                       ..... Petitioner
                    Through:  Mr.Raj               Kumar        Bhartiya,
                    Advocate.

                           versus

        AGGARWAL PLASTICS & OTHER                    ..... Respondents
                    Through: None.
        CORAM:
        HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)

1. The petitioner has invoked the writ jurisdiction of this court under Article 226 of the Constitution of India for setting aside the award dated 16.07.2010 passed by the learned Presiding Officer, Labour Court-XVII, Karkardooma Courts, Delhi (hereinafter referred to as „Industrial Adjudicator‟) in Direct Industrial Dispute No. 1193A/06 by which the claim of the petitioner was dismissed for want of jural relationship of employer and employee between the parties.

2. It was the case of the petitioner/workman that he was working with the respondent/management as a driver since 1989 and his last drawn salary was Rs.4,000/- per month. He pleaded that the respondent had its business at 10668, 10853, 10855 and

10856, Nabi Karim, Delhi and had also been managing M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. at 34, Bahadur Garh, Haryana. He claimed that he had been driving vehicle No. HR- 46A-892 and he was also asked to drive the vehicle of the real brother of the proprietor of the respondent. He claimed that when he demanded his legal entitlements and unpaid wages, the respondent obtained his signatures on the blank papers on 08.04.2006 and removed him from the services. It is claimed that he had lodged a complaint with the police on 13.04.2006 and that the respondent had not paid his unpaid wages for the period from 01.02.2006 to 08.04.2006.

3. In its written statement, the respondent/management pleaded that there was no employer-employee relationship between the parties. It was pleaded that the petitioner had taken undue advantage with the help of local police in illegally obtaining a sum of Rs.8,633/- on 24.04.2007 without any direction/order from any court. It was pleaded that the claim cannot be looked into in the background of such an amount having been drawn through a cheque. It was also pleaded that the petitioner/workman was an employee of M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd., Bahadurgarh, Haryana and that the court in Delhi had no jurisdiction to try the petition.

4. The petitioner had filed his rejoinder to the written statement of the respondent/management.

5. On the pleadings of the parties, learned Industrial Adjudicator had framed the following issues on 03.01.2008: -

"a) Whether there existed relationship of employer and employee between the parties? OPW

b) If answer to issue no.1 above is in affirmative, whether the service of the workman have been terminated illegally and/or justifiably by the management, if so its effect? OPW

c) Relief."

6. In support of his case, the petitioner examined himself as WW-1. On the other hand, the respondent firm had examined Sh.Ashok Kumar as MW-1.

7. After hearing both the parties, learned Industrial Adjudicator came to the conclusion that there was no employer and employee relationship between the parties and the petitioner had failed to prove the relationship as framed under issue no.1 and answered the said issue in negative and consequently dismissed the claim petition.

8. Learned counsel for the petitioner has argued that in fact the petitioner was working with M/s. Aggarwal Attachi House, Delhi and has relied upon a photocopy of a cheque (Ex.WW- 1/7) issued by M/s. Aggarwal Attachi House in favour of the petitioner bearing No.722576 dated 25.04.2007 for Rs.8633/-. He submits that the Industrial Adjudicator has failed to consider that the issuance of the said cheque to the petitioner is itself indicative of the jural relationship as employer and employee between the parties. He admits that the ESI Card bearing

No.7111622 Ex.WW-1/1 issued to the petitioner does reflect the name of the employer/management as M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana by the Authority under ESI Act, Bahadur Garh, Haryana. Learned counsel for the petitioner admits that no evidence has been adduced by the petitioner to support his claim that he was employed with the respondent/firm.

9. To prove the relationship of employer and employee, the petitioner had testified that he had been working with the respondent M/s.Aggarwal Plastic, who was also running another firm namely M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana. He had denied the suggestion in his cross-examination that M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana was his employer. He admitted in his cross-examination that Ex.WW-1/1, which is the ESI Card, was issued to him by his employer. He denied the suggestion that he never worked with M/s.Aggarwal Attachi House. He stated that he did not send notice of demand to M/s. Aggarwal Attachi House or to M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. He admitted that he does not have any proof of working either with M/s. Aggarwal Plastics or M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana. He also admitted that the vehicle No. HR-46A-1892 is registered in the name of M/s. Jai Durga Rubberised Fabrics

(India) Pvt. Ltd. Bahadur Garh, Haryana and not in the name of M/s. Aggarwal Plastic.

10. The respondent examined MW-1 Sh. Ashok Kumar, who deposed that he is the partner of M/s. Aggarwal Attachi House, Nabi Karim, Delhi. He testified that the respondent did not own any vehicle. He further deposed that the petitioner was working with M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana. He stated that the Police SI had obtained his signatures under coercion in seeking refund of Rs.8,633/- to the workman.

11. It is well settled principle of law that the person, who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this regard, the Hon'ble Supreme Court in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. V. State of T.N. and Others, (2004) 3 SCC 514 has approved the judgments of Kerala & Calcutta High Court, wherein the plea of the workman that he was an employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Para 48 to 50 of the said judgment read as under: -

"48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Others, (1973 Lab IC 398), the Kerala High Court held:

The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the

employer that if he were to produce books of accounts they would have proved employer-employee relationship.

49. In Swapan Das Gupta & Others v. The First Labour Court of W.B. (1976 Lab IC 202 (Cal)) it has been held:

Where as person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.

50. The question whether the relationship between the parties is one of the employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse."

12. It is now not in dispute that the Labour Court or the Industrial Tribunal have all the trappings of a court. Where the parties are at variance for facility of disposal, issues will have to be framed. Parties have to lead evidence. Section 11-C confers power of a civil court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or the Tribunal has to decide the lis on the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act, it is nonetheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. Here it would not be out of place to refer Para 31 of the

judgment of the Apex Court in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. And Another., (1979) 3 SCC 371, which reads as under: -

"31. Rule 15 confers power to admit a call for evidence. Rule 16 enables the Labour Court or Industrial Tribunal to administer oath. Rule 60 prescribes the form of application to be made under s.

33. The application has to be in Form J or K, as the case may be, and has to be on verification. The cause- title in the prescribed form requires that the applicant and the opposite party should be specifically described in the application. These forms are more or less analogous to a plaint in a suit and the reply to be filed would take more or less the form of a written statement. Where the parties are at variance for facility of disposal issues will have to be framed. It is open to it to frame an issue and dispose it of as a preliminary issue as held in M/s. Dalmia Dadri Cement Ltd. v. Its Workmen. Parties have to lead evidence. Section 11-C confers power of a civil court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or Tribunal would then; proceed to decide the lis between the parties. lt has to decide the lis and the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nontheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. It would not be open to it to decide the lis on any extraneous considerations. Justice, equity and good conscience will inform its adjudication. Therefore, the Labour Court or the Industrial Tribunal has all the trappings of a Court.

13. The Hon'ble Supreme Court in Shankar Chakravarti (supra) has further held that obligation to lead evidence to

establish the allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. In this regard Para 32 of the said judgment is also relevant to mention here, which reads as under: -

"32. If such be the duties' and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, if it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non- existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. V. Industrial Tribunal commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no

pleading there is no question of proving something which is not pleaded. This is very elementary."

14. The Hon'ble Supreme Court in the case of Range Forest Officer v. S.T. Hadimani, 2002 (3) SCC 25, held as under: -

"3. .................................. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."

15. A Single Bench of this Court has held in Automobile Association of Upper India Vs. PO Labour Court, 2006 LLR 851 that appointment of workman can be proved by producing the appointment letter, written agreement, attendance register, salary register, leave record of ESI or provident fund etc. by the workman. The workman can also call the record from the

management. Para 14 and 15 of the said judgment read as under: -

"14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.

15. In the instant case, the workman filed an affidavit by way of evidence on the 29th April, 1993 and closed his evidence. Thus, the only evidence in support of the plea of employment was the self serving affidavit filed by the workman and nothing beyond that to support his claimed plea of service of seven years. In view of the principles laid down by the Supreme Court in Range Officer v. S.T. Hadimani, II (2002) SLT 154 such affidavit by itself is wholly insufficient to discharge the burden of proof on the workman."

16. While considering the facts of the present case in the light of the principle of law laid down by the Hon‟ble Supreme Court, the evidence adduced by the parties is to be examined and appreciated. The original ESI Card Ex.WW-1/1 placed on record by the petitioner clearly reflects that it was issued to him

by the Authority under ESI Act, Bahadurgarh and shows the name of his employer as M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, District Rohtak, Haryana. He claims that his services were terminated by the respondent M/s. Aggarwal Plastics but failed to explain as to how and on what account Rs.8,633/- were given to him by cheque on 25.04.2007 by M/s Aggarwal Attachi House. Ex.WW-1/8 is the copy of Fard Makbuzki of the said cheque No. 722566 dated 25.04.2007 by which the said amount of Rs.8600/- was obtained through the SI, PS Nabi Karim, Delhi from Sh. Ashok Kumar, the former owner of M/s.Aggarwal Plastics, which is now being run by M/s.Aggarwal Attachi House. The particulars of the FIR of the case as to why the amount was recovered are not mentioned. Ex.WW-1/12 &WW-1/13 are the copies of the delivery challans filed by the petitioner issued by M/s. Aggarwal Plastics by which certain goods were supplied to M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana.

17. It is evident from the documents placed on record by the petitioner that he has never been the employee of M/s. Aggarwal Plastics but of M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana. The petitioner has failed to adduce any evidence that the management of M/s. Jai Durga Rubberised Fabrics (India) Pvt. Ltd. Bahadur Garh, Haryana and M/s. Aggarwal Plastics are one and the same. In the absence of any documentary proof with regard to the

constitution and working of these concerns, it is not possible to hold that the petitioner is the workman of the respondent M/sAggarwal Plastics particularly when the ESI Card in original Ex.WW-1/1 reflects the petitioner as employee of M/s.Jai Durga Rubberised Fabrics (India) Pvt. Ltd. having its head office at Bahadur Garh, District Rohtak, Haryana, which is independently a separate legal entity and situated outside the jurisdiction of this court.

18. Considering the above said facts, I do not find any infirmity or illegality in the impugned award dated 16.07.2010. As such the petition is dismissed with no order as to costs.

(VINOD GOEL) JUDGE

FEBRUARY 07, 2018 "shailendra"