Delhi High Court
Babu Ram vs Govt. Of Nct Of Delhi & Anr on 13 February, 2018
Author: Vinod Goel
Bench: Vinod Goel
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.02.2018
+ W.P. (C) 3570/2015
BABU RAM ..... Petitioner
Through: Mr.Vivekanand Mishra, Advocate
with Mr.Vipul Aggarwal, Advocate.
versus
GOVT OF NCT OF DELHI & ANR. ..... Respondents
Through: Ms.Urvi Mohan, Advocate for
Mr.Sanjoy Ghose, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
1. In this writ petition, the petitioner has impugned the Award dated 29.10.2014 passed in ID No. 45/2014 (Old ID No. 738/2013) by which the learned Presiding Officer, Labour Court, Karkardooma Courts, Delhi (hereinafter referred to as „Industrial Adjudicator‟) answered the reference dated 28.10.2013 against him.
2. The brief facts leading to filing of the present writ petition are that the Secretary (Labour), Govt. Of NCT, Delhi vide order No. No.F-24 (516)Lab./SD/2013/21166 dated 28.10.2013 referred the industrial disputes between the parties for adjudication to the Labour Court on the following terms: -
"Whether the services of Sh. Babu Ram s/o Sh. Ram Bharose has been terminated illegally and/or W.P (C) 3570/2015 Page 1 of 9 unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
3. In his statement of claim the petitioner claimed that he was employed as Munim in the month of January, 2008 by the respondent and his last drawn salary was Rs.6,000/- per month. The respondent did not provide him appointment letter, leave book, weekly and yearly leave, overtime, conveyance allowance, bonus, identity card etc. and when he demanded these facilities respondent terminated his services on 01.01.2010 in violation of Section 25F of Industrial Disputes Act, 1947 (in short „ID Act‟). The respondent also did not pay him his salary for the period from 01.04.2009 to 31.12.2009. He sent a demand notice through the Union demanding the earned wages and consequential benefits.
4. The respondent, in its written statement, had denied the claim of the petitioner and pleaded that there was no relationship of employer and employee between them and therefore the question of reinstatement of the petitioner in service does not arise. The respondent had also denied that the petitioner was appointed as Munim or his last salary was Rs.6,000/- per month.
5. In order to prove his claim, the petitioner examined himself as WW-1. On the other hand, the respondent did not adduce any evidence.
6. After hearing both the parties, the Industrial Adjudicator held that the workman had failed to prove his relationship with the respondent and as there was no relationship of employer and W.P (C) 3570/2015 Page 2 of 9 employee between the parties, the question of his illegal termination from the services did not arise and answered the reference against the petitioner.
7. It is argued by the learned counsel for the petitioner that along with his rejoinder the workman has placed on record Photostat copy of the attendance register maintained by the respondent reflecting the name of the petitioner having worked with M/s. Pawan Furniture and Tent House for the period from 21st January, 2009 to 7th December, 2009 which reflects that the petitioner was working with the respondent firm. The learned counsel for the petitioner admitted that this copy of the alleged attendance register was never tendered in evidence. It is not on the Format Register and just a copy of simple line register without any print name of respondent. It does not bear the signature or stamp of the respondent. It is also not explained as to in whose handwriting this was prepared. The petitioner has not taken any step before the Industrial Adjudicator to summon the attendance register through the concerned officer/official.
8. 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 judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of W.P (C) 3570/2015 Page 3 of 9 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 reads as under: -
"48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union & Ors, (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 & Ors. 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 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."
9. 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 W.P (C) 3570/2015 Page 4 of 9 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 W.P (C) 3570/2015 Page 5 of 9 Court or the Industrial Tribunal has all the trappings of a Court.
10. 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 W.P (C) 3570/2015 Page 6 of 9 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."
11. 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."
12. 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 W.P (C) 3570/2015 Page 7 of 9 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."
13. While considering the facts of the present case in the light of the principles of law laid down by the Hon‟ble Supreme Court, the evidence adduced by the parties is to be examined and appreciated. Admittedly in the present case, the petitioner has not moved any application calling upon the respondent/management to bring the original record i.e. W.P (C) 3570/2015 Page 8 of 9 attendance register, salary register, leave register record of ESI and PF contribution.
14. The petitioner has placed on record his self supporting affidavit, demand notice and postal receipts in evidence which does not prove his relationship with the respondent as employee and employer.
15. In these circumstances, I do not find that the impugned Award suffers from any illegality or perversity. There is no merit in the petition. The same is accordingly dismissed with no order as to costs.
(VINOD GOEL) JUDGE FEBRUARY 13, 2018 "shailendra"
W.P (C) 3570/2015 Page 9 of 9