Delhi District Court
Sh. Lal vs . M/S. Ved Scooter Repairing Works Id No. ... on 4 September, 2012
Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0399042008
F.24 (671)/07/Lab./5587 - 91 Dated
Reference No.
30.04.2008.
Type of case Reference Case.
Date of Institution 31.05.2008
Arguments heard on 04.09.2012
Date of Order 04.09.2012
WORKMAN Vs. MANAGEMENT
Sh. Lal S/o Sh. Noor Mohammad M/s. Ved Scooter Repairing
C/o Engineering Workers Lal Works, O - 31, West Patel Nagar,
Jhanda Union, J - 441, Karampura, New Delhi - 110008.
New Delhi - 15.
PRESENT:
None for the parties.
ORDER :-
1. The appropriate Government sent a reference no. F.24 (671)/07/Lab./5587 - 91 Dated 30.04.2008. to this court in relation to the illegal termination of the services of the workman Sh. Lal by the Management M/s. Ved Scooter Repairing Works The reference specifically pointed out as follows : "Whether Sh. Lal S/o Sh. Noor Mohammad were terminated illegally and/ or unjustifiably by the Management, and if so, to relief was he entitled?"
2. The claimant / workman filed an application for production of the following documents which are stated to be under the control of the respondent / Management : ORDER Page 1 of 6 Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08
(a) Attendance Register from 1991 to till date;
(b) Wages Register from 1991 to till date; and
(c) Appointment letter of the workman.
3. The respondent / Management filed its reply. It opposed to the demand of the production of documents of the workman.
4. Both the ld. counsels have argued their cases.
5. The workman Lal raised this industrial dispute against the Management M/s. Ved Scooter Repairing Works. The respondent / Management appeared after service of the summons.
6. The pleadings of the parties have been perused.
7. In its written statement the respondent / Management has taken a specific plea in para no 2 of preliminary objections that the claimant / workman was apprentice / trainee and not a regular employee and he attended his duties casually and that too for two months only when the shop of the Management was sealed.
8. The workman has also filed rejoinder to this written statement filed by the Management.
9. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
10. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop. Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows :
49. "It is a 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."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish ORDER Page 2 of 6 Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08 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."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has been held that "Where a person asserts that he was a workman of 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."
11. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR 851.
12. In Automobile Association of Upper India Limited Vs. PO Labour Court & Anr.
(SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.'
13. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the ORDER Page 3 of 6 Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08 obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non
- existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page
- 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal burden' was coined by Lord Denning while the phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled ORDER Page 4 of 6 Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08 as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd.
(1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice. Therefore, any party appearing before anyone of such Authorities must make a claim or demur the claim of the other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
14. In the light of this law this court is of the view that the requirement of evidence by the workman and the Management is not simultaneous. It is a primary duty of the claimant to show that at least a prima facie case exists in his favour and thereafter if he succeeds in doing that the Management's evidence would be taken into consideration either in rebuttal or in the establishment of alternative factual circumstances put forward by it in defence.
ORDER Page 5 of 6Sh. Lal Vs. M/s. Ved Scooter Repairing Works ID No. 179/08
15. In this case whether the Management specifically denied the existence of any relationship in the nature of 'an employer and an employee' between it and the workman, it cannot be forced to produce the documents related to that employment which it has specifically denied. As per the Management any such production, if ordered by the court, would ask the Management to fabricate and produce the same. Therefore, any such orders requiring the Management to produce these documents, as demanded by the claimant / workman would create a position of legal contradiction. This cannot be done by a court of law.
16. The application of the workman is hence dismissed with the observations that it is self - contradictory or tries to create a contradiction in Management's legal position.
17. Now the case be listed for RWE as per schedule given in the ordersheet.
ANNOUNCED IN THE OPEN COURT ON 04.09.2012.
ORDER Page 6 of 6