Delhi High Court
Mohit Electronics vs The Workman Tahir Hussain on 22 March, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 6284/2004
Reserved on: 9th November, 2017
Pronounced on: 22nd March, 2018
MOHIT ELECTRONICS ... Petitioner
Through: Mr. Viraj Datar and Vineet
Jhanji, Advocates
Versus
THE WORKMAN TAHIR HUSSAIN ... Respondent
Through: Mr. Rajiv Agarwal, Ms.
Mehgna and Mr. Sachin Kumar,
Advocates
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
C. HARI SHANKAR, J.
1. Alleging that his services had been illegally terminated by the
petitioner, the respondent initiated an industrial dispute, which was
referred, by the Government of National Capital Territory of Delhi
(hereinafter referred to as "the GNCTD"), for adjudication to the
Labour Court, vide Order No F.24 (4875)/2000-Lab dated 7th
February, 2001, with the following term of reference:
"Whether the services of Sh. Tahir Hussain have been
terminated illegally and/or unjustifiably by the management
WP (C) 6284/2004 Page 1
and if so, to what reliefs he entitled and what directions are
necessary in this respect?"
2. The impugned Award, dated 22nd January, 2004, of the Labour
Court, holds the termination, of the respondent by the petitioner, to
amount to retrenchment, and, having been effected in violation of
Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred
to as "the ID Act"), directs reinstatement, of the respondent, with
continuity of service and full back wages.
3. Needless to say, the petitioner assails the said decision.
4. As is the norm, the respondent, during the pendency of these
proceedings, moved an application, under Section 17-B of the ID Act,
whereon this court, vide order dated 14th November, 2005, directed the
petitioner to pay, to the respondent "wages at the higher of the two
rates between the last drawn wages or minimum wages as are notified
by the statutory authorities from time to time with effect from 22 nd
January, 2004". This was, however, subject to the furnishing, by the
respondent, of an undertaking, to the effect that, in the event of the
respondent failing in these proceedings, he would reimburse, to the
petitioner, the differential amount between the last drawn wages and
the wages paid to him under the order dated 14th November, 2005. The
requisite undertaking, in terms of the said direction, was filed, by the
respondent, on 4th January, 2006.
WP (C) 6284/2004 Page 2
5. Pursuant to the aforementioned reference, to the Labour Court,
by the GNCTD, vide Order dated 7th February, 2001, Statement of
Claim was filed, by the respondent, before the Labour Court. It was
sought to be contended, therein, that the respondent had joined
employment, with the petitioner (which operated from Shop No 441,
Lajpat Rai market, Delhi) in January, 1986, on monthly wages of ₹
10,000/-, as an Electrician and Video Mechanic, and that, despite his
service being "unblemished and uninterrupted", the petitioner, who
was not maintaining any service record as required under the Delhi
Shops and Establishment Act, 1954, illegally terminated the services
of the respondent. The Statement of Claim contended that, pursuant
thereto, a complaint was made, by the respondent, on 6 th July, 2000, to
the Asst Labour Commissioner, who directed the Labour Inspector to
visit the premises of the petitioner, and that, on the occasion of the
said visit, on 1st July, 2000, the Labour Inspector in fact found the
respondent working in the premises of the petitioner. It is alleged, by
the respondent, that, consequent on the said visit, the Labour Inspector
directed the representative of the petitioner to appear before him on
18th July, 2000, at his office. Incensed thereby, the respondent would
contend, the petitioner not only defaulted in compliance with the said
direction of the Labour Inspector, but also terminated, forthwith, the
services of the respondent. As such, it was sought to be contended that
the services of the respondent had been terminated by way of
victimisation, and that, owing to its having been effected without
complying with the mandate of Section 25-F of the ID Act, the
respondent was entitled to reinstatement with continuity of service and
WP (C) 6284/2004 Page 3
full back wages. A list, enumerating the documents on which the
respondent proposed to rely, was annexed to the Statement of Claim,
to which I would be alluding, in detail, later in the course of this
judgment.
6. The petitioner filed its written statement, in response to the
Statement of Claim of the respondent, contending, essentially, that
there was no employer-employee relationship between the petitioner
and the respondent, as the respondent had never worked with the
petitioner in any capacity at any point of time. It was sought to be
averred that the respondent was a stranger to the petitioner-or at least
to its business-and that, consequently, there could be no question
either of termination, or of retrenchment, of the respondent by the
petitioner. Section 25-F of the ID Act, therefore, it was sought to be
contended, never came in for application in the present case. It was
also sought to be contended that the respondent was, in fact, gainfully
employed elsewhere.
7. The respondent cited only himself as his defence witness
(WW-1), whereas the petitioner cited R.K. Suri, the proprietor of the
petitioner and Vicky, a commission agent in Old Lajpat Rai Market, as
their witnesses, who were, therefore, designated as MW-1 and MW-2
respectively.
WP (C) 6284/2004 Page 4
8. The respondent filed his affidavit-in-evidence, sometime in
May, 2002, basically reiterating the contents of his Statement of
Claim.
9. Consequent upon filing of Statement of Claim by the
respondent, and written statement by the petitioner by way of response
thereto, the following issues were framed, by the Labour Court, as
arising for its consideration, on 19th March, 2002:
" (1) Whether no relationship of employer and employee
exists between the parties and whether the claimant is not a
workman within the meaning of Section 2(s) of I.D. Act, 1947
as claimed for by the management in preliminary objection
No. 2 raised by the management in its written statement?
(2) As per terms of reference."
10. Oral evidence of the respondent, as WW-1, was recorded,
before the Labour Court, on 3rd October, 2002. The respondent stood
by his affidavit, which was exhibited as Ex.WW-1/A. The documents
relied upon, by the respondent, in his favour were exhibited as under:
(i) Ex.WW-1/1 was an undated letter, from the President,
Delhi Labour Union to Mr. Suri, proprietor of the petitioner.
(ii) Ex.WW-1/2 was a communication dated 6th July, 2000
from the Delhi Labour Union to Shri V.S. Arya, Assistant
Labour Commissioner, GNCTD.
(iii) Ex.WW-1/3 was the Statement of Claim of the
respondent.
(iv) Ex.WW-1/4 consisted of copies of visiting cards of the
petitioner.
WP (C) 6284/2004 Page 5
(v) Ex.WW-1/5 was the copy of Identity Card of the
daughter of the petitioner for the year 1998-99.
(vi) Ex.WW-1/6 was the copy of a Bill, purportedly of the
petitioner, bearing the respondent's signature.
(vii) Ex.WW-1/7 was the copy of a bank pass book of the
respondent, bearing the address of the petitioner.
(viii) Ex.WW-1/8 consisted to two blank non-judicial stamp
papers for Rs. 1,000/-, each stated to be "four pages of the
registry" of the respondent's house, showing the address of the
petitioner entered on the reverse, as "441, Lajpat Rai Market,
Delhi-110006" i.e. the address of the respondent.
(ix) Ex.WW-1/9 was the photocopy of a challan form of the
Ghaziabad Development Authority (GDA), showing the name
of the applicant as "Tahir Hussain" and the address for
correspondence as "441, Lajpat Rai Market, Delhi-110006" i.e.
the address of the petitioner.
(x) Ex.WW-1/10 was the photocopy of a letter dated 26th
April, 1993, from the respondent to the GDA, in which, too, the
respondent entered the address of the petitioner as his address.
(xi) Ex.WW-1/11 was another communication dated 16th
November, 1993 from the respondent to the GDA in which, too,
the address of the petitioner i.e. 441, Lajpat Rai Market, Delhi-
110006 was shown as, the address of the respondent.
(xii) Ex.WW-1/12 to Ex. WW-1/14 were post cards addressed
to the respondent, purportedly by property dealers, in which the
WP (C) 6284/2004 Page 6
address of the respondent was shown as "441, Lajpat Rai
Market, Delhi-110006" i.e. the address of the petitioner.
(xiii) Ex.WW-1/15 was an envelope addressed to the
respondent, stated to have been received at the address of the
petitioner.
(xiv) Ex.WW-1/16 and Ex.WW1-17 were inland letters,
addressed to the daughter of the respondent, with the address
shown as the address of the petitioner i.e. 441, Lajpat Rai
Market, Delhi-110006.
(xv) Ex.WW-1/18 was the copy of a letter, probably written in
Urdu, stated to be received by the respondent from his relative
in Pakistan, in which the address of the respondent was shown
as "441, Lajpat Rai Market, Delhi-110006".
11. Examination and cross examination of the respondent, as WW-1
took place on 3rd October, 2002 and 19th December, 2002.
12. In his examination-in-chief, the respondent proved his affidavit,
as well as the various documents, already filed by him. His cross-
examination, by the authorised representative of the petitioner, may be
reproduced, in extenso, as under:-
" I do not have any documentary evidence issued by
either the proprietor or the partner of the Mgt. issued in
my favour to show that relationship or employer and
employee existed between the parties. Vol. Documents
like letters received by me at the address of the Mgt., bank
record relating to opening of bank account of my daughter
WP (C) 6284/2004 Page 7
wherein address of the Mgt. has been mentioned, have
already been filed on record. Sh. Ravinder Kumar Suri is
the Prop. of M/S. Mohit Electronics. Three firms operate
from the address in question i.e., 441, Lajpat Rai Market,
and the names of the said firms are M/S. Uttam Chand
Suri and Sons. 2. M/S. K.V.S. Electronics, & 3. M/S.
Mohit electronics. Shri Uttam Chand Suri is the prop. Of
M/s. Uttam Chand Suri & sons. Shri Sunil Suri is the
brother of Shri Ravinder Kumar Suri is the prop. Of M/s.
K.V.S. Electronics. It is correct that M/S. Mohit
Electronics is situated on the 1st floor whereas the
remainder firms are situated on the ground floor. It is
correct that on the document Ex.WW1/1 to Ex. WW1/17
name of the Mgt. does not find a mention except on the
visiting card and Ex.WW1/15. Further Vol. to say that
address of the Mgt. i.e., 441, Lagpat Rai Market finds a
mention therein. My attention did not used to be marked.
Nor my signature used to be obtained on any attendance
register. Vol. as and when Sh. Ravinder Suri did not used
to be present in the shop, I used to prepare bills while
booking the sets and also used to deliver the same to the
parties and at that time I used to put my signature on the
said bill. It is wrong to suggest that no bill was ever
prepared by me. Vol. Bill bearing my signature which
were issued by me two such bills/ are already on record,
and the same are Ex.WW1/6. After seeing the judicial file
the witness states that there is only one such bill
Ex.WW1/6 which was issued by me and bears my
signature. It is wrong to suggest that Ex.WW1/6 had been
issued by the Mgt. when I had approached it as customer
to get some electrical gazette rectifying. Vol. Name of the
customer can be seen from the said bill which is
mentioned as Shri Jagannath. Original of the said bill had
been handed over to the customer and therefore it is not
available with me. I had obtained Ex.WW1/6 from the
shop. Again said I am in possession of the carbon copy of
the said bill from which photocopy Ex.WW1/6 was
obtained and I have shown the carbon copy to the Ld. AR
of the Mgt. It is wrong to suggest that carbon copy of the
bill from which Ex.WW1/6 was obtained, was taken by
me from Shri Jagannath. Vol. it was taken by me from
WP (C) 6284/2004 Page 8
the bill book. It is wrong to suggest that carbon copy
Ex.P.1 from which Ex.WW1/6 was got made, is not in my
handwriting. I know little bit of English. It is wrong to
suggest that I do the job of repairing of electronics items
on the Patri while sitting outside premises No. 441,
Lajpat Rai Market, Delhi. It is wrong to suggest that
those electronics items which I myself could not repair I
used to get the same repair from M/S. Mohit Electronics.
I have seen bill book interalia containing bill No. 3229
dated 30.5.90 which bears my signature at point A. That
bill book is Ex.P.2 and aforesaid bill is Ex.P.3 (Court
Observation Bill Book P.2 has been produced by Ld. AR
of the Mgt.). Portion encircled at point B in Ex.P.3 is not
in my handwriting. It is wrong to suggest that the
encircled portion Mark B Ex.P.3 is on my own
handwriting. Address mentioned on Ex.P.3 is not mine
and even my name is not mentioned therein. It is wrong
to suggest that Ex.P.3 had been issued by the Mgt. when I
had approached for getting my VCR repair. Vol. When I
myself repair, where was the need for me to approach the
Mgt. It is wrong to suggest that address of the Mgt. has
been mentioned on Ex.WW1/7, WW1/8, WW1/9,
WW1/10, WW1/11, & WW1/11 to WW1/15, because I
used to do the repair work while on the patri out side the
shop of the Mgt. I have brought with me original of
Ex.WW1/5. It is wrong to suggest that telephone No. and
address mentioned on exhibit WW1/5 is that of Sh
Upender Kumar Suri. Vol. There is only on telephone
connection at premises No. 441, of which a line also goes
to the first floor. It is wrong to suggest that I was never in
the employment of M/S. Mohit Electronics. I know that
firm by the name of M/S. Anil Electronics is situated at
528, Old Lagpat Rai Market. It is wrong to suggest that I
have been doing work of the said firm on a job work
basis. Vol. I am on friendly terms with them and
therefore, I just got and sit there friendly only. It is
correct that once in a while I do repairing job also while
sitting in the shop of the said firm. It is wrong to suggest
that I earned about Rs. 5,000/- per month by doing
repairing job at the shop of firm of M/S/ Anil Electronics.
Vol. I am able to earn about Rs. 400-500/- per month by
WP (C) 6284/2004 Page 9
doing the said repairing work. It is correct that I know
Shri Guddu prop. of M/S. Chadhary Electronics, at KK
Block, Meena Bazar, Jama Masjid, Delhi. It is wrong to
suggest that I do repairing job at this shop also. It is also
wrong to suggest that I am able to earn Rs. 5,000/- per
month by repair job at the shop of the said Shri Guddu. I
did not make any complaint against the Mgt. for not
maintaining my service record to any authority under the
law. It is incorrect to suggest that I was not found
working by the labour Inspector of Labour Deptt. with the
Mgt. in question. It is incorrect to suggest that the
averments made in my affidavit is false. It is also wrong
to suggest that the documents placed by me on the court
record are fabricated one. It is also wrong to suggest that
I have deposed falsely. It is incorrect to suggest that I
have not served any legal demand notice to the Mgt. prior
to raise an industrial dispute. I do not remember if
demand notice Ex.WW1/1 had been got issued by me
through union or not to the Mgt. It is wrong to suggest
that the present proceedings have been initiated by me as
a counter blastto the quarrel which I have with the mgt. on
account of non-payment of money towards the repair
charges."
13. The petitioner, per contra, filed, as its evidence, affidavits of
MW-1 R.K. Suri and MW-2 Vicky, dated 19th December, 2002 and
27th February, 2003 respectively.
14. MW-1 R.K. Suri, in his affidavit in evidence, categorically
denied having been ever appointed the respondent, or of there being
any master-servant relationship between the petitioner and the
respondent. It was asserted that the respondent was, in fact, repairing
electrical items on the footpath (patri) in the market, independently,
since long. It was also sought to be alleged that the respondent was
WP (C) 6284/2004 Page 10
working in Shop no. 528, of M/s. Anil Electronics and M/s.
Chaudhary Electronics, K-Block, Meena Bazar, from which he used to
earn more than Rs. 10,000/- per month. The affidavit of MW-1 further
stated that the respondent used to occasionally sit in front of the shop
of M/s K.V.S. Electricals, on the ground floor of the building. In view
of these assertions, the affidavit in evidence of MW-1 reiterated the
stand canvassed in the written statement filed by the petitioner, before
the Labour Court, that the respondent was not the petitioner's
workman but was, in fact, a stranger to its business.
15. Examination and cross examination of MW-1 R.K. Suri took
place on 17th April, 2003. In his examination in chief, MW-1 R.K.
Suri proved his affidavit, which was, accordingly exhibited as
Ex.MW-1/A. The cross examination of MW-1 deserves to be
extracted in extenso, as under:
"Ex.WW1/4 & 5 are related to the mgt. The mgt. does
maintain cash books like Ex.WW1/6 on Ex.WW1/7 address
of the mgt. is correctly mentioned. Ex.WW/8 to WW1/11
does not bear complete address of the mgt. Vol. the estbl. is
situated on the first floor but this fact has not been mentioned
on Ex.WW1/8 to WW1/11. WW1/12 to WW1/15 do not bear
complete address of the mgt. because the estbl. is situated on
the first floor but this fact is not mentioned therein. Ex. P-2
relates to the mgt. No house tax is payable in respect of
property no. 441 question of & therefore/it being/ assessed as
the whole as a unit does not arise. I am not aware only one
receipt used to be issued in respect of the aforesaid property
by MCD or not. This fact must be in the knowledge of my
brother. It is wrong to suggest that I am aware about the fact
that only one receipt is issued by MCD in respect of the said
property but have intentionally concealed the said fact from
the court. It is correct that workman is electrician and T.V.
WP (C) 6284/2004 Page 11
mechanic. It is wrong to suggest that workman was employed
as a Electrician & T.V. Mechanic in January, 1986 & it is also
wrong to suggest that workman had lastly drawn his wages @
of Rs. 10,000/- per month. I have no knowledge of the
workman had lodge a complaint dt.6.7.2000 in the labour
office regarding non-maintenance of record by the mgt. I do
not know if in pursuance of the said complaint labour
inspector & visited the estbl. & actually found the workman
working. It is wrong to suggest that on this mgt. got annoyed
& terminated his services. Vol. since the workman was never
in the employment of the mgt. question of terminating his
services does not arise. It is correct that demand notice had
been got issued by the workman through his union. Question
of my giving any reply to the said demand notice was never
felt and it was never required. I did not attend the conciliation
proceedings. Nor any reply was filed because it was not
required. I have no evidence to show that the workman used
to do the work of M/s Choudhary Electronics & Anil
Electronics as mentioned in para 4 of my affidavit. Vol. I had
only seen him working for them. I have also no evidence to
show that the workman has been earning Rs. 10,000/- per
month. No notice or pay in lieu thereof or retrenchment
compensation was ever paid to the workman concerned. It is
wrong to suggest that I have deposed falsely."
16. MW-2 Vicky, in his affidavit-in-evidence, stated that he had
been working as Commission Agent in the Old Lajpat Rai Market for
about eight years, and that the respondent was working as an
electronics mechanic sitting on the patri (footpath) and had, three to
four years earlier being, doing the same work in front of the shop of
M/s K.V.S. Enterprises. It was further averred that the respondent was
also doing the work of Commission Agent. MW-2 categorically stated
that the respondent was not employed with the petitioner, and had
never worked with the petitioner, or with its proprietor Mr. Ravinder
Kumar Suri. It was also sought to be stated that, during "negotiations"
WP (C) 6284/2004 Page 12
with MW-2, the respondent had acknowledged that he did not work
with the petitioner and had filed a false case against the petitioner at
the instigation of certain other persons.
17. MW-2 Vicky was examined in chief, and cross-examined, on
17th April, 2003. In his examination-in-chief, MW-2 proved his
affidavit aforesaid, which was, accordingly exhibited as Ex. MW-2/A.
18. The cross examination of MW-2 reads thus:
" Even at present I work as Commission agent. It is
correct that as commission agent. I take the perspective
customers to the shops & after sale of the goods to them. I
collect my commission from the shop. While working as
commission agent. I had taken customers to the present mgt.
also & it used to pay me commission. I learned about the
pendency of the present case from various persons while
working as commission agent in the market. I myself had
enquired from MW1 that I had heard about pendency of the
present case whereon he replied in the affirmative, MW1 had
also told me that workman had told him to teach a lesson. I
had told MW1 that I would help in the matter. It is wrong to
suggest that since I collect commission from the estbl. in
question, I have deposed falsely against workman at the
instance of MW1. Vol. I have business transaction with
workman as well. Apart from my oral evidence regarding
taking of the customers to the workman & collecting my
commission in respect of the sale resulting therefrom, I have
no other documentary evidence in that regard. I have stated
in my affidavit that the workman earns about Rs. 4000 to
5000/- per month. Apart from my oral deposition regarding
monthly earnings of the workman to the tone earning Rs.
4000 to 5000/- a month. I have no evidence in that regard. I
am also able to earn between Rs. 4000/- to 5000/- a month. I
do not pay income tax. On average I visit the estbl. about 7/8
times. I am not aware of the earnings of MW1. Apart from
my own oral statement, I have no other evidence to show that
WP (C) 6284/2004 Page 13
workman concerned was never in the employment of the mgt.
It is wrong to suggest that I have deposed falsely."
19. Having heard learned counsel appearing for the parties before it,
the Labour Court proceeded, vide the impugned award dated 22nd
January, 2004, to hold that the respondent was the employee of the
petitioner, and had been retrenched in violation of Section 25-F of the
ID Act. Consequently, the termination of the respondent was held to
be illegal and unjustified, and the petitioner was directed to reinstate
him with continuity of service and full back wages, as already noticed
in para 1 hereinabove.
20. To arrive at its finding that the respondent was, in fact, the
employee of the petitioner, the Labour Court relied upon the visiting
cards (Ex.WW-1/4), which were admitted, by MW-1, in his cross-
examination, to be the visiting cards of his shop, as well as the identity
card of the respondent's daughter (Ex.WW-1/5), the challan form
relating to the booking, by the respondent, of a flat with the GDA
(Ex.WW-1/9), wherein, too the address of the petitioner was
mentioned, (iv) Ex.WW-1/10, pertained to 1993 and which was
received by the respondent, mentioning the address of the petitioner
and (v) Ex.WW-1/11, which, again, was a letter pertaining to the year
1993, relating to allotment of a house number to the respondent, which
was also received at the address of the petitioner.
WP (C) 6284/2004 Page 14
21. The Labour Court expressed the view that, if the respondent had
not been working with the petitioner, there was no reason for him to
give the address of the petitioner as his own address for
correspondence. The stress laid, by the petitioner, on the fact that its
address, as mentioned in these documents, did not mention the fact
that the petitioner was located on the first floor, was held to be
unmerited, as the address of the petitioner, on the visiting cards
exhibited as Ex.WW-1/4 - which the petitioner admitted to be its
visiting cards - did not refer to the first floor either. The Labour Court
opined that the receipt, by the respondent, of regular correspondence,
at the address of the shop of the petitioner, indicated that the
respondent worked there. Finally, the Labour Court observed that, as
against the above evidence adduced by the respondent, the petitioner
had not examined anyone, including the visitors to its shop, the
brothers who were running the shop on the ground floor or any of its
neighbours, to establish its case. As such, it was held that the factum
of existence of employer-employee relationship, between the
petitioner and respondent, stood conclusively established. Issue No. 1,
as framed by the Labour Court was, therefore, answered, by it, in
favour of the respondent and against the petitioner.
22. Following thereupon, Issue No.2, as framed by the Labour
Court, was also decided in favour of the respondent, holding that the
termination of the respondent from service, by the petitioner,
amounted to "retrenchment" within the meaning of the ID Act, and
having been effected without complying with the requirements of
WP (C) 6284/2004 Page 15
Section 25, stood vitiated thereby. As such, the termination of the
respondent was held to be illegal and unjustified; consequently, the
petitioner was directed to reinstate the respondent with continuity in
service and full back wages.
23. I have heard Mr.Viraj Datar and Mr. Rajiv Agarwal, learned
counsel for the petitioner and respondent, at considerable length, and
perused the record.
24. Mr. Datar, learned counsel appearing for the petitioner, first
sought to question the very applicability, to his client, of the ID Act,
contending that the petitioner could not be regarded as an "industry"
as defined in Section 2(s) of the ID Act; it was emphasized, in this
context, that there was no evidence of the petitioner having any
employee in its establishment, except the respondent - assuming the
respondent was the petitioner's employee. Such establishments,
Mr. Datar would seek to contend, were not "industries", as held in the
classic decision, of V. R. Krishna Iyer, J., speaking for a bench of
seven learned Judges of the Supreme Court in Bangalore Water
Supply and Sewerage Board vs A. Rajappa, (1978) 2 SCC 213. For
the said proposition, reliance was also placed on The Bombay Union
of Journalists vs The Hindu, AIR 1963 SCC 138. Without prejudice
to this preliminary objection, Mr. Datar would contend that the
evidence, which the respondent sought to rely upon, to advocate the
existence of an employer-employee relationship between his client and
the respondent, was merely in the nature of self-serving documents
WP (C) 6284/2004 Page 16
created by the respondent himself, to which the petitioner was neither
a party nor a signatory. None of the said documents, Mr. Datar would
strive to point out, was issued by his client. He submits that, when
subjected to incisive cross-examination, the respondent himself
acknowledged this lacuna, by admitting that he had no documentary
evidence, with him, as would serve to demonstrate that the petitioner
was his master, and he, its servant, as also that the name of the
petitioner did not figure in any of the said documents, save and except
the visiting cards exhibited as Ex WW-1/4, and on the envelope
marked as Ex WW-1/15. There was no attendance register to indicate
the respondent as having attended work at the petitioner's, and the
signature of the respondent, too, was to be found only in a a single
handwritten "bill" exhibited as Ex WW-1/6, against which there was
no evidence of any receipt of payment. Mr. Datar would submit that
the onus, to prove the existence of employer-employee relationship,
was squarely on the respondent, and that the Labour Court fell gravely
in error in casting the said onus, instead, on the petitioner, in para 12
of the impugned order, which faulted the petitioner for not having
produced evidence to indicate that the respondent was not its
employee. At the same time, Mr. Datar sought to wish away the
presence of the respondent, at the shop of the petitioner, at the time of
visit by the Labour Inspector, by stating that the petitioner did,
occasionally, take work from the respondent. Finally, Mr. Datar
pressed into service the judgement of this Court in Chander Sen vs.
J. B Garments, 160 (2009) DLT 18, to bring home his point.
WP (C) 6284/2004 Page 17
25. Arguing in response, Mr. Rajiv Agarwal, appearing for the
respondent, submitted, first, that the question of whether the petitioner
was, or was not, an "industry", was a question of fact, and was being
taken, for the first time, in the present proceedings, to which he
strongly objected. No such issue, he pointed out, was framed by the
Labour Court, and no such ground has even been taken in the writ
petition filed before this court. Had such an objection been taken,
Mr. Agarwal would submit, he would have had an opportunity to meet
the same, and, therefore, while exercising its jurisdiction under Article
227 of the Constitution of India, this Court ought not to countenance
such a submission on the part of the appellant. Mr. Agarwal has also
placed reliance on Bombay Union of Journalists (supra), and has
submitted that the sufficiency of the evidence led before the Labour
Court, as justification for the conclusions arrived at by it, was not a
matter which was open for examination, by this Court, exercising writ
jurisdiction over the award of the Labour Court. Judicial notice,
Mr. Agarwal would submit, could be taken of the fact that, in order to
exploit labour, many employers never issued appointment letters to
workmen. Mr. Agrawal further alleged that the petitioner was
resorting to approbate and reprobate, as much as, in the written
statement filed before the Labour Court, the specific stand, of the
petitioner, was that the respondent was "a stranger to the
management", who had "filed this case on the instigation of some
persons to extract money illegally from the management", whereas,
before this Court, Mr. Datar had accepted that the respondent
occasionally worked for the petitioner. As against this, Mr. Agarwal
WP (C) 6284/2004 Page 18
points out that, in paras 5 and 6 of the present writ petition, an entirely
new stand was taken, i.e., that the respondent was carrying on his
business on the footpath (patri) outside the shop. (To this, Mr. Datar
responds, rightly, that the said stand was taken by the petitioner before
the Labour Court - as has already been noticed by me hereinabove.)
Mr. Agarwal points out that this entire dispute originated because the
petitioner was not maintaining any service record, or issuing any
appointment letter to its workmen, including the respondent. My
attention was invited, by Mr. Agarwal, to the cross-examination of
MW-1, which, in his submission, was disconsonant with the "patri"
theory now being propounded. Finally, Mr. Agarwal would exhort, on
this court, not to substitute the view of the Labour Court - which, in
his submission, was well justified - with any alternate view.
26. Proceeding, now, to examine the rival submissions advanced by
both counsel before me, I may state, the very outset, that the objection,
of Mr. Agarwal, to the submission, of Mr. Datar, that the petitioner
was not an "industry" within the meaning of the ID Act, being
entertained at this stage, is well-founded, and merits acceptance.
Mr. Agarwal is right in contending that the issue of whether an
establishment was, or was not, and "industry", within the meaning of
the said Act, is not a pure question of law, but is, by its very nature, a
mixed question of law and fact. Whether a particular establishment
satisfies the indicia of an "industry", as judicially interpreted by
decision after decision of the Supreme Court, is one of the most
involved issues in industrial jurisprudence. Bangalore Water Supply
WP (C) 6284/2004 Page 19
(supra) is, no doubt, the watershed decision on the point, and is, by
now, locus classicus, constituting, as it does, a study as fascinating,
legally, as semantically. Much water has, however, flowed down this
bridge since then, , and the "zig-zag course of the landmark cases", to
which Krishna Iyer, J., so felicitously alluded in Bangalore Water
Supply (supra), has become a veritable labyrinth. I need not,
however, delve too deep into the jurisprudential contours of
"industry"; suffice it to state that the argument of Mr. Datar might, had
it been raised at the appropriate juncture and prosecuted with due
diligence, have well merited consideration, especially in view of the
following word of caution, sounded by Krishna Iyer, J., himself, in
Bangalore Water Suppy (supra), in para 88 of the report:
"We must hasten, however, to repeat that a small category,
perhaps large in numbers in the mofussil, may not squarely
fall within the definition of industry. A single lawyer, a rural
medical practitioner or urban doctor with a little assistant
and/of menial servant may ply a profession but may not be
said to run an industry. That is not because the employee
does not make a contribution nor because the profession is
too high to be classified as a trade or industry with its
commercial connotations but because there is nothing
like organised labour in such employment. The image of
industry or even quasi-industry is one of a plurality of
workmen, not an isolated or single little assistant or
attendant. The latter category is more or less like personal
avocation for livelihood taking some paid or part-time from
another. The whole purpose of the Industrial Disputes Act is
to focus on resolution of industrial disputes and regulation of
industrial relations and not to meddle with every little
carpenter in a village or bla ksmith in a town who sits with
his son or assistant to work for the customers who trek in. The
ordinary spectacle of a cobbler and his assistant or a cycle
repairer with a helper, we come across in the pavements of
cities and towns, repels the idea of industry and industrial
WP (C) 6284/2004 Page 20
dispute. For this reason, which applies all along the line, to
small professions, petty handicraftsmen, domestic servants
and the like, the solicitor or doctor or rural engineer, even
like the butcher, the baker and the candle-stick maker, with
an assistant or without, does not fall within the definition of
industry. In regular industries, of course, even a few
employees are enough to bring them within Section 2(j).
Otherwise automated industries will slip through the net."
(Emphasis supplied)
In view of this cautionary caveat, it is clear that a small shop,
involving one or two workmen, cannot be regarded as an "industry",
howsoever widely one may interpret the expression. Para 42 of
Bangalore Water Supply (supra) underscores the point, thus:
"A chronological survey of post-Banerji decisions of this
Court, with accent on the juristic contribution registered by
them, may be methodical. Thereafter, cases in alien
jurisdictions and derivation of guidelines may be attempted.
Even here, we may warn ourselves that the literal latitude of
the words in the definition cannot be allowed grotesquely
inflationary play but must be read down to accord with the
broad industrial sense of the nation's economic community of
which Labour is an integral part. To bend beyond credible
limits is to break with facts, unless language leaves no option.
Forensic inflation of the sense of words shall not lead to an
adaptation breakdown outraging the good sense of even
radical realists. After all, the Act has been drawn on an
industrial canvas to solve the problems of industry, not of
chemistry. A functional focus and social control desideratum
must be in the mind's eye of the Judge.
(Emphasis supplied)
27. Mr. Datar would essentially exhort this court to acknowledge
that his client was managing a shop on the first floor of the Old Lajpat
Rai Market, with a job-hand or two to help him along, and could not,
therefore, by the farthest stretch of imagination, be elevated to
WP (C) 6284/2004 Page 21
"industrial status". If one were to examine the facts, and given the
public knowledge that we, as denizens of this city have of Old Lajpat
Rai Market, one may be tempted to accept the submission; this court
is, however, required to act, not on the basis of personal knowledge or
public perception but on the basis of evidence, and, in the absence of
any evidence being led, on the issue, this way or that, must refrain
from pronouncing on the issue. The nature of the petitioner's
enterprise, its scale and sweep, the number of workers that the
petitioner employs - essentially, whether the petitioner can be said to
engage "organized labour" or not - are matters which have to be
determined on the basis of evidence, and, in view of Section 106 of
the Indian Evidence Act, 1872, the initial onus, in this regard, must be
on the petitioner, who would be best conversant of the manner in
which it conducts its affairs. No attempt, to canvass such a stand,
appears to have been made at any earlier stage. I reiterate, therefore,
that Mr. Agarwal's objection, to Section 2 (j) of the ID Act being
invoked at this stage of the proceedings, has to be accepted, and this
court cannot allow Mr. Datar, therefore, to canvas this proposition
now. It is not possible, therefore, to disturb the findings of the Labour
Court on this ground.
28. Once the preliminary objection of Mr. Datar thus stands
answered, all that remains to be seen is whether the finding, of the
Labour Court, that the respondent was the employee of the petitioner,
warrants interference, or not. I may, at once, note that, in case this
finding of the Labour Court is upheld, the inevitable sequitur, in the
WP (C) 6284/2004 Page 22
facts of the present case, would be the dismissal of the present writ
petition, in view of the admitted position that there was no compliance
with Section 25-F of the ID Act, while dispensing with the
respondent's services.
29. This court does not sit in appeal over the decision of the Labour
Court. I had, in D.D.A. vs Mool Chand, MANU/DE/2016/2017,
culled out, from the volume of law enunciated by the Supreme Court
on the subject, the following principles, to guide exercise of
jurisdiction, against awards of Labour Courts and Industrial Tribunals:
(i) The Labour Court/Industrial Tribunal is the final fact
finding authority.
(ii) The High Court, in exercise of its powers under Article
226/227, would not interfere with the findings of fact recorded
by the Labour Court, unless the said findings are perverse,
based on no evidence or based on illegal/unacceptable
evidence.
(iii) In the event that, for any of these reasons, the High Court
feels that a case for interference is made out, it is mandatory for
the High Court to record reasons for interfering with the
findings of fact of the Labour Courts/Industrial Tribunal, before
proceeding to do so.
(iv) Adequacy of evidence cannot be looked into, while
examining, in writ jurisdiction, the evidence of the Labour
Court.
WP (C) 6284/2004 Page 23
(v) Neither would interference, by the writ court, with the
findings of fact of the Labour Court, be justified on the ground
that a different view might possibly be taken on the said facts.
30. Applying these principles to the case at hand, I am unable to
convince myself that the decision of the Labour Court calls for
interference.
31. Exhibits WW-1/5, WW-1/6, WW-1/7 and WW-1/9 were all
documents in which the address of the respondent was reflected as
"441, Lajpat Rai Market, Delhi- 110006", which was the address of
the petitioner. Of these, Ex.WW-1/6 was a bill, raised by the
petitioner, which bore the signature of the respondent. Besides baldly
suggesting that the said documents, adduced by the respondent in his
defence, were fabricated, the petitioner has not led any evidence to
support the said allegation. The suggestion, to the said effect, was put
to the respondent in cross examination, and was categorically denied
by him. These are documents prior in point of time to the arising of
the dispute in the present case and it cannot, therefore, be presumed
that the address of the petitioner was entered in the said documents,
merely to substantiate the case being set up by the respondent.
32. The respondent has also produced communications, addressed
to him at the address of the petitioner, which were received by
him/forwarded to him (as exhibits WW-1/10 to WW-1/18). Besides
the above, it is an undisputed fact that, at the time when the Labour
WP (C) 6284/2004 Page 24
Inspector visited the premises of the petitioner, the respondent was
found working there. The explanation, proffered by the petitioner in
this regard, i.e. that the petitioner used to occasionally avail the
services of the respondent, appears on its face, to be escapist in nature.
33. In this context, I entirely endorse the views, expressed in para
12 of the impugned Award, that the petitioner was significantly remiss
in failing to lead any evidence to support its stand that the respondent
was not its employee. Mr. Datar's objection, to this finding of the
learned arbitrator, that it amounted to a reversal of the onus of proof,
which was cast on the respondent, is incapable of acceptance. Onus of
proof, it is trite, is never static, and continuously shifts between the
parties. The initial onus cast on the respondent to prove the factum of
his employment with the petitioner having been discharged by him by
way of Ex.WW-1/3 to Ex.WW-1/18, the onus shifted to the petitioner
to prove to the contrary, and I find no infirmity, in the opinion,
expressed in para 12 of the impugned Award, that the petitioner made
no effort, whatsoever, towards the discharged thereof.
34. I also find substance, in the grievance voiced by Mr. Rajiv
Aggarwal, that the petitioner has been adopting vacillating, and
mutually incompatible, stands at different points of time, averring in
one breath, that the respondent was a complete stranger to the
petitioner; in the next, that the services of the respondent were
"occasionally" used by the petitioner; and, in the next, that the
respondent was plying his trade on the patri (footpath) outside the
WP (C) 6284/2004 Page 25
building. Such prevarication necessarily has to result in an inference
adverse to the petitioner.
35. Viewed in totality, therefore, it cannot be held, in my view, that
the impugned decision of the Labour Court is so irrational, or perverse
as to warrant interference under Article 227 of the Constitution of
India.
36. I may, here, observe that the objection, voiced by Mr. Datar to
the evidence adduced by the respondent in his favour i.e. that none of
the documents bore the signature, stamp or seal of the petitioner, and
that, sans the said documents, there was no other material to indicate
employment, of the respondent, by the petitioner, may possibly
suggest that a different view might also be taken on the available facts;
having said that, however, no case for interference with the impugned
award of the Labour Court would still be made out, in view of the trite
position, in law, that the mere possibility of another view, on the facts,
would not justify interference with the award of the Labour Court,
under Article 227 of the Constitution of India. It is not for this Court,
in exercise of the said jurisdiction, to burrow in the thicket and seek to
espy whether any other view, different from that taken by the Labour
Court, is possible, or to sift out all possible views emanating from the
facts and determine, for itself, which is most possible in its perception.
Once the view of the Labour Court is found to be plausible, as well as
possible, the brief of this Court stands discharged, and any further
inquiry into the matter, by me, would amount to conversion, of my
WP (C) 6284/2004 Page 26
jurisdiction under Article 227 of the Constitution of India, from one of
judicial review and superintendence, into one of appeal, which would
obviously be impermissible in law.
37. In that view of the matter, I am of the opinion that no case,
justifying interference with the impugned award of the Labour Court,
can be said to be made out. The view taken by the Labour Court is a
plausible view, which cannot be said to be vitiated on account of any
patent illegality, or to be ex facie perverse.
38. Resultantly, the impugned award of the Labour Court is upheld
in totality. However, the respondent's entitlement to wages, during
the pendency of these proceedings, shall be limited to the amounts
paid consequent to the orders passed by this Court, as referred to in
para 3 (supra).
39. The writ petition is accordingly disposed of, without any order
as to costs.
C.HARI SHANKAR
(JUDGE)
MARCH 22nd, 2018
gayatri
WP (C) 6284/2004 Page 27
