The petitioner challenged a Labour Court award which held that he failed to prove an employer-employee relationship with the respondent. The High Court dismissed the writ petition, holding that the writ court cannot reappraise findings of fact by the Labour Court and that the ESI card produced did not relate to the respondent's entity.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified Signed By:RAM DATT Signing Date:18.10.2024 16:10 Certify that the digital and physical file have been compared and the digital data is as per the physical file an d no page is missing.
was answeredto the effect that the workman i.e. the petitionerherein had never been employed by the managementof M/s Kartar Singh Sira & Sons and that there was no question of illegal terminationof the services of the petitionerand that thus there had been no illegal terminationof the servicesof the petitionerhereinby the management, though, it was also held vide the said award to the effect that the management had neither pleaded nor led any evidence that the workmanhad left the job after ftill and final settlementas was one part of the referencemade vide the referencehereinaboveas made by the appropriate Government.
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" i . Whether there exists no relationship of employer and employeebetweentheparties?
a. Whetherthe respondentis not an industry?
Hi. Asper terms ofreference. "
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->
examination admitted that after his termination, he worked with another establishment jfrom 1994 to 2001.
Issue No.l
The case of the workman is- that, he was working with the management for the last five years as 'Sales-man' and was drawing salary of Rs. 850/- per month. On the other hand, the case of the management is that the workman was not in the employment of the management. The Hon'ble Supreme Court ofIndia in a ease reported as "2004 LLR 351" has held as-underr
! ' S
"BURDEN OF PROOF - For existence of relationship of employer and employee - It is well settled principle of law that the person who sets up a plea of its existence - The burden would lie upon him,
In view of the above referred judgement, the onus to prove this issue is upon the workman. The workman in order to prove this issue has examined himself as WWl and filed his affidavit. Ex. WWI/A. In his affidavit Ex. WWl/A, the workman has stated that he was working with the management for the last five years as Salesman for a monthly salary of Rs. 850/-. The workman has also filed documents Ex. WWI/1 to Ex. WWI/6. Ex. WWl/1 is ESI Card in the name of the workman. Ex. WWl /2 is a letter
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written by the General Secretary of the Union to the Labour Officer. Ex. WWl/3 is the report of the Labour Inspector. Ex. WWl/4 is the letter written by the workman to the management. Ex. WWl/5 is the postal receipt and Ex. WWl/6 is the acknowledgement card.
The Hon'ble Madhya Pradesh High Court (Indore Bench) in a judgment reported as "2001 (88) FLR 230" has held as under :
"To prove a contract of employment, there has to be a direct evidence to show some nexus between the claimant and the respondent. This can be of any kind such appointment letter, monthly payment slip, deduction of PF, payment of any dues which would show that he was in the employment^ any correspondence wherein the respondent; Has admitted that claimant was in his employment In substance, the courts are in favour of documentary evidence to record a definite finding on such type of issue. They are,the best piece of evidence for coming to a conclusion one way or other."
The Hon'ble DelhiJHighs^^ in a judgment reportedas "130 (2006)DLT166"has heldas under :
"Labour Law - Engagement and appointment in. service can be established directed by existence and production of appointment letter, written agreement or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave records, deposit ofPF contribution, ESI, etc."
As discussed above, in this case, the workman has filed six documents. Out of these, only 2 documents i.e. report of theLabourInspectorwhich is Ex. WWl/3 and the ESI card which is Ex. WWl/1 are the documents which can
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show that the workman was in the employment of the management. As regards the report Ex. WWl/3 of the Labour Inspector is concerned, I am of the view that the same has not been proved in accordance with law because the workman has not examined the Labour Inspector. Therefore, the said report cannot be considered. As regards the ESI card Ex. WW 1/1 is concerned, it is important to note that the name of the employer is not mentioned on the same. The management has denied that the ESI card pertains to it. The workman has not examined the ESI official in order to show that the ESI card pertains to the answering management. Therefore, under these circumstances, I am of the vie^v that the ESI card Ex. WWI/1 does not show that the workman was in the employment of the management
Apart from the documents \ mentioned above the workman has not filed any other document to show that he was in the employment of,the management. In vie^v of the judgments "2001 (88) FIR 230" and ''130 (2006) DLT 160" (Supra). I am of the view^ thCit the workman has not filed any such document which could show that the workman was in the employmentybf the management. As regards the affidavit of the:w:oxhndnas concerned. 1 am of the view that the same cannot b^ relied upon because in his affidavit Ex. WWl/A, the workman has stated that he was unemployed since 07.12.1991. But., in his cross examination, he has submitted thgt^ he joined M/s Sahni Rubber in the year 1994 and he was removed from M/s Sahni Rubber in the year 2001. Therefore, it is clear that the workman has mentionedfalse facts in his affidavit, and therefore, it. is not safe to rely upon his affidavit.
In view of the above discussion, I am of the view that the workman hasfailed toprove that he was employedwith the management.
Accordingly, this issue is decided in favour of the management and against the workman. Issue No. 2:
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\ . >
The onus to prove this issue is upon the management. The management has examined one Sh. Gurdeep Singh as MW 1 who has filed his affidavit. Ex. MWl/A. Theperusal ofhis affidavitEx. MWl/A shows that he has not mentionedin his affidavitthat the management was not an industry.
Therefore, under these circumstances,I am of the view that the managementhasfailed to prove that it is not an industry.
Issue is decided accordingly, against the management and infavour of the workman.
Issue No. 3:
The first part of the reference is that whether the claimanthas left the job afterfull andfinal settlement.In this regard, the managementhas notpleadedthisfact and did not lead any evidence that the workman has left the Job afterfull and final settlement.
The other part of the.reference is that whether the services of the workman were, terminated by the managementillegally.In.order toprove this, the workman has filed his affidavit Ex. WWl/A wherein, he has stated that his services were terminated by the management illegally. The case of the managementis_ that the workman was never in the employmentof the management.In issue No. 1 above, it has been held that the workman was never employed by the management. Therefore, no question of illegal termination of his services by the management arises.
In view of the above, in my view the workman has failed to prove that his services were illegallyterminated by the management.
In view of thefindings on the issues above, 1 am of the consideredview that the workman hasfailed to prove
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that he was employed by the management, and his services were illegally terminated by the management.
Reference is answered accordingly and the Award is passed. "
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V
managementas a helper on the tempo and sometimes,he was also made to polish the cabinet.
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Enterprises and that he did not know whether till the date of his testimonyi.e. 01.08.2006,Shri JS Sira was doing his business in the name and style of M/s J.S. Enterprises.MW-1 denied the suggestion raised on behalf of the petitionerthat the claimantwas working with the managementand statedthat the respondenthad not appearedin the conciliation proceedings and could not answer whether the management had produced any document in the conciliation proceedings. The respondent also denied the receipt of any document during the course of the conciliation proceedings and denied that the management had stated in the conciliation proceedings that the claimant had left the job after receiving his full and final payment and stated that there was no question of payment to the petitioner who was working on duty on a trial basis, and that,he had been paid travelling expenses.
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the managementhad issuedthe ESI Card ofM/s J.S. Enterpriseswhen he, the petitionerwas doing the work of M/s Kartar Singh Sira & Sons,- was declined vide order dated 01.03.2004 by the learned Presiding Officer, Labour Court-X observing to the effect that accordingto the workman he was working only with managementof M/s Kartar Singh Sira & Sons and thathe had not claimedthathe had worked with M/s J.S. Enterprises and that thus the learned Labour Court-X observedto the effect that it had not found any merit in the submissionsmade by the learned AR for the workman observingto the effect that the reference made by the appropriate Government referred to hereinaboveclearly showed that the Court had to decide whether Shri Bansh Bahadur had left the job after ftill and final settlement from M/s Kartar Singh Sira & Sons whose name was mentioned in the reference or whether his services were terminated illegallyand unjustifiablyby the managementand the learnedLabour Court observed to the effect that .it^ cannot exceed the terms of reference and thus the learned Labour Court could not go into the questionof whetherthe workman was in the employmentof M/s J.S. Enterprisesor not and that thus the applicationseekingsummoningof M/s J.S. Enterprises was dismissed. 16. Qua issue no.l which related to the aspect as to whether there exist any relationship of the employer and employee between the parties,the learnedLabour Courtplacingrelianceon the verdictof the Hon'ble Supreme Court reported in 2004 LLR 351 observed to the effect that to prove the issue, the petitionerhad examinedhimselfas WWl and had inter alia stated that he had worked with the
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managementfor the last five years as a salesmanfor a monthlysalary of Rs.850/and filed the documents Ex.WWl/1/ to Ex.WWl/6 and that Ex.WWl/1 was an ESI Card in the name of the workman, Ex.WWl/2 was a letter written by the General Secretary of the Union to the Labour Officer, Ex.WWl/3 was a report of the Labour Inspector, Ex.WWl/4 was a letter written by the workman to the management, Ex.WWl/5 was a postal receipt thereof and Ex.WWl/6 was acknowledgement card. The learned Labour Court held that out of these six documentsonly report of the Labour Inspector Ex.WWl/3 and ESI Card, Ex.WWl/1 were the documents which could show that the workman was in the employment of the management and that as per the report of the Labour Inspector, the respondent/ employerhad refused to reinstate the petitioner on work and it was held by the learned Labour Court that the said docurnenthad not been proved in accordance with law because the workman had not examined the Labour Inspector and that thus the^saiidlreportcannot be considered and as regards t|a^Ex.WWl/r,the-ES'I;iCard,it was observedby the learned Labour Court that the name of the employer was not mentioned and that the management had/denied that the ESI Card pertained to it and that the workman had not examined the ESI Official to show that the ESI Card pertained to the answering management. It was held by the learned Labour Court that Ex.WWl/1 did not show that the workman was in the employment of the management and that apart from these two documents i.e. Ex.WWl/1 and Ex.WWl/3, there was nothing to show that the petitioner was in the employment of the management.
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"They can compelwitnessesto appear, they can administer oath, they are required -to.^^ certain rules of procedures; the proceedings before them are required to comply with rules of naturaljustice, they may not be bound by the strict and technical rules of evidence, but, nevertheless,they must decide on .evidenceadduced before them; they may not be boundby other technicalrules oflaw, but their decisions must, nevertheless, be consistent with the general principles of law. "
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Tribunal <&. Ors. AIR 1981 SC 606 wherein it was observed to the
effect:
"The object of giving such wide powers is to mitigate the rigour of the technicalitiesof the law,for achievingthe object effectiveinvestigationand settlementof industrialdisputes, and thus assuring industrial peace and harmony. The discretion thus conferred on these authorities to determine the procedure as they may thinkfit, however, is subject to the rules made by the 'appropriate Government'in this behalf Part III of the Industrial Disputes (Central) Rules, 1957 makes rules in this behalf Rules 9 to 30 are the relevant rules regulating procedure. State Governments too have made their own corresponding rules. Except to the extent specified in sub-s.(3) of s. 11 of the Act and the rulesframed thereunder, the provisions of the Code of Civil.Procedure, 1908 are not applicable to proceedings before the authorities mentioned in sub-s.(l). Theprovisions of the Evidence Act, in their strict sense, likewise do not apply to proceedings before the authorities. Nevertheless,,all these authorities being quasijudicial in nature objectively,determining matters referred to them, have to exercise theii: di:screti6nin a judicial manner, without caprice, and dccoMingito Hhe'.generalprinciples of law and rules ofnatural justic^i":-'--
to contend to similar effect that the provisions of the Indian Evidence Act, 1872 in the strict sense;,do not apply to the proceedings before the Labour authorities. Undoubtedly, the said contention raised on behalf of the petitioner cannot be faulted with. However, it cannot be overlooked that the categorical assertions of the respondent in the instant case were to the effect that the ESI Card issued to the petitioner did not relate to the respondent.
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has not assailed this order dated 01.03.2004 of the learned Labour Court at any stage.
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D ,
him and that the completeset ofcabinetsofTVs were preparedby him and that most of the time, he worked with the managementas a helper on the tempo and sometimes,he was made to polish the cabinet.The said cross examinationofthe petitionerdoes not bring forth a relationshipof an employer and employee between the partiesin as much as there are discrepanciesin the testimonyof the petitioner himself as to the nature of duties and engagement between him and the respondent. The specific date of stated employmentof thepetitionerwith therespondenthas also not been put forth by the petitioner. 25. The contentionraised by the petitionerherein is to the effect that there is a Labour Inspector's report dated 23.12.1991 i.e. Ex.WWl/3 to the effect that the management of the respondent had refused to take the petitioner herein into the services and the same without the Labour Inspector having been produced in the witness box being taken into account in as rnuch as the strict rules of evidencedo not apply in industrialadjudicationin as much as in terms of Section 11(1) of the Industrial Disputes Act, 1947. Undoubtedly, though, the learned Labour Court may follow such procedure as it may think fit and thus, though in terms of Section 11(3) of the said enactment, the learned Labour Court is vested with the powers of a Civil Court under the Code of Civil Procedure, 1908 as when trying a suit in relation to the aspect of enforcing the attendance of any person and examining on oath, compelling the production of documents and material objects, issuing commission for examination of witness and in respect of
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such methods as may be prescribed,the same, however, as rightly contended on behalf of the petitioner, would not make the strict rules of evidence applicable to the Labour Court proceedings. However, the said factum, Ex.WWl/3 which incorporatesa refusal of the respondent/managementto employ the petitioner, is not an indicator and cannot be read to the effect that the respondent by such refusal to employ the petitioner had admitted the existence of an employer-employee relationship between itself and the petitioner.
"That para 1 of the statement of: claim is wrong incorrect and hence denied. lt is. wrong to say that the workman was working with the management for the last five years. As per the record of the management the workman joined the management w.e.f. 04.11.1991 as a helper with monthly salary of Rs:850/- p.m. and he has received his full and final dues of Rs.ll04/upto 07.12.1991 and left the job of his own. "
It cannot however be overlooked that even in the said reply, the respondent had contended that all the claims of the petitioner stood satisfied and that he has received his full dues of Rs.ll04/upto 07.12.1991 and that the petitioner had left the job of his own.
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1
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means that findingsoffact reachedby the inferiorCourtorTribunalas a result of the appreciation of evidence cannot be reopened or questionedin writ proceedingsand an error of law which is apparent on the face of the recordcan be correctedby a writ, but not an errorof fact, howevergrave it may appearto be and that in regardto a finding of fact recordedby the Tribunal,a writ of certiorarican be issued if it is shown that in recording the said finding, the Tribunal had erroneouslyrefusedto admit admissibleand materialevidence,or had erroneouslyadmittedinadmissibleevidencewhich has influencedthe impugned finding and similarly,if a finding of fact is based on no evidence, that would be regarded,as an;error of law which can be correctedby a writ of certiorariand that'a Court must always bear in mind that a finding of fact recorded by the Tribunal cannot be challengedin proceedingsby a writ ofcertiorarion the groundthat the relevant and material evidence'.^adduced;before the Tribunal was insufficientor inadequateito sustain the-impugnedfinding and the adequacyor sufficiencyof evidf^ncel^:orra point and the inferences of fact to be drawn from the said finding are within the exclusive jurisdictionof the Tribunal, and,the saidipbints< cannot be agitated beforea writ courtand that it is withinthese limitsthat the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorarican be legitimatelyexercised, 29. It was furtherobservedby the Hon'bleSupremeCourtvide para 8 of the said verdict, which reads to the effect:-
"8. It is, of course, not easy to define or adequatelydescribewhatan error of law apparent
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on the face of the record means. What can be correctedby a writ has to be an error of law; but it must be such an erroroflaw as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusionof law recordedby an inferior Court or Tribunal is based on an obvious mis interpretationof the relevantstatutoryprovision, or sometimesin ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevantstatutoryprovisionthat no difficulty is experiencedby the High Court in holdingthat thesaiderrorof law isapparenton theface of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on theface of the record jas such and the Court may need an argument to 'discoverthe said error; but there can be no doiibt that what can be correctedby a writ ofcerkordrvis.an errorof law and the said error must, be of such a characteras wouldsttii^ili^mtthat it is an error of law apparenton theface of the record.If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court br Tribunal, its conclusionmay not necessarilyor always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describeadequately all cases of errors which can be appropriately describedas errors of law apparenton theface of the record. Whetheror not an impugned error is an error of law and an error of law which is apparent on the face of the-record, must always
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depend upon thefacts and circumstancesof each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
"7. The arguments advanced on behalf of the petitioner workman, if entertained, would amount to interfering with thefindings offacts as arrived at by the Labour Court after due appreciation of evidence. Law is well settled in this respect that the Labour Court is the final court offacts and it is not appropriatefor this Court, while exercising jurisdiction under Article 226 of the Constitution, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. Thejurisdiction (^ercised by the writ court under Article 226 is supervisory dnd not appellate in nature. Reappraisal of{ evidence without sufficient reason in law^ to arrive at a finding of fact contrary to\l those rtirrtyedf at by the Subordinate Court, is.not of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments of the Supreme Court:
(i)Harbans Lai v. Jagmohdn Saran
(ii) B.C. Chaturvedi v. Union ofIndia
(Hi) Indian Overseas Bank v. I.O.B. Staff Canteen Workers? Union AIR 2000 SC 1508
(iv) P.G.I, of Medical Education and Research Chandigarh v. Rajkumar (2001) 2 see 54.
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V
(v) Municipal Corporation of Delhi v. Asha Ram andAnr."
and thus, in that case where it was observedthat thatfindings of the LabourCourt were based on an appreciationofthe materialplacedon the record which findings were neither perverse nor arbitrary nor capricious,it was held that,it did not warrantany interference.
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petitioner for the offence of forgery on the basis of facts and documents placed on the record as the same was kept pending for decisionby the learnedLabourCourt. A bare perusalof the recordsof the learned Labour Court indicate that vide order dated 02.02.2007 it had been observed by the learned Labour Court qua the application under Section 340 Cr.P.C. to the effect:
"As regards the applicationof the managementU/s 340 Cr. P.C. is concerned, I am of the opinion that it is not in the interestofjustice to make enquiry into the said application. Accordingly,the application isfiled. "
? -jr ANU MALHOTRA,J.' ^
MAY 9'^ 2019/vm
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3 issues framed by the court
Whether the petitioner was an employee of the respondent management?
Whether the respondent constitutes an industry?
Whether the petitioner's services were illegally terminated?
Colour shows how this judgement treated each authority
2004 LLR 351Referred¶20
2001 (88) FLR 230Referred¶27
130 (2006) DLT 166Referred¶29
AngloAmerican Direct Tea Trading Co. Ltd. v. Their WorkmenReferred¶73
AngloAmerican Direct Tea Trading Co. Lid. V. Their Workmen & Another AIR 1963 SC 874 · Who else cites this
Grindlays Bank Ltd. v. Central Government Industrial TribunalReferred¶75
Grindlays Bank Ltd. V. The Central Government Industrial Tribunal & Ors. AIR 1981 SC 606 · Who else cites this
Syed Yakoob v. K.S. RadhakrishnanReferred¶105
Syed Yakoob Vs. K.S. Radhakrishnan and Ors. AIR 1964 SC 477 · Who else cites this
Parshuram Shah v. Govt. of NCT of DelhiReferred¶116
ParshuramShah Vs. Govt. of NCT of Delhi and Anr
Harbans Lal v. Jagmohan SaranReferred¶118
Harbans Lai v. Jagmohdn Saran
B.C. Chaturvedi v. Union of IndiaReferred¶119
B.C. Chaturvedi v. Union of India
Indian Overseas Bank v. I.O.B. Staff Canteen Workers' UnionReferred¶120
Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508 · Who else cites this
PGI of Medical Education and Research Chandigarh v. RajkumarReferred¶121
P.G.I. of Medical Education and Research Chandigarh v. Rajkumar (2001) 2 see 54
Municipal Corporation of Delhi v. Asha RamReferred¶125
Municipal Corporation of Delhi v. Asha Ram and Anr.
6 provisions across 3 enactments
Bansh Bahadur
M/s Kartar Singh Sira & Sons
ANU MALHOTRA
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
