Full Text
W. P. (C) 675/2011 & CM 1432/2011
HITESH KUMAR VERMA
Through:
Through:
HITESH KUMAR VERMA
Through: ..... Petitioner Mr. Anil Sehgal, Advocate.
Through: None
JUDGMENT
1. Whether Reporters oflocal papers may be allowed to see the order? No
2. To be referred to the Reporter or not? No
3. Whether the order should be reported in Digest? No
JUDGMENT
14.10.2011..... Respondent 1 1. These two writ petitions involve more or less similar set of facts and are being disposed of by this common judgment.
2. W. P. (C) No. 675 of 2011 by Hitesh Kumar, proprietor of M/s An1it Garments n: P. (C) Nos. 675 and 929 of20II Page I of[4] '-~ 2011:DHC:15949 challenges an Award dated 22nd May 2010 passed by the Labour Court allowing the claim of the Respondent workman Shri Nav Bahar in DID No. 129 of 2006 and directing the Petitioner management to compensate the workman in the sum of Rs. 75,000/- in lieu ofthe reinstatement.
3. W. P. (C) 929 of2011 by the same Petitioner challenges the Award dated 22nd May 2010 of the Labour Court allowing the claim ofthe Respondent workman Shri Chander Pal in DID No. 130 of 2006 and directing the Petitioner to compensate him in the sum ofRs. 75,000/- in lieu ofreinstatement.
4. The case of both the Respondent workmen was that they were employed as tailors with the Petitioner management. Shri Nav Bahar claimed that he was employed since 1994 whereas Shri Chander Pal claimed that he was employed since 1986.
5. Both workers claimed that they were not paid salaries for the period December 2004 to 13th January 2005. When they reported for duty on 14th January 2005 and demanded the arrears of salary, they were threatened and beaten by some anti-social elements at the behest of the management. The workmen claimed that their services were illegally terminated by the management in violation of Section 25F of the Industrial Disputes Act, 1947 ('ID Act').
6. The resultant industrial dispute was referred to the Labour Court for adjudication in DID Nos. 129 and 130 of2006, respectively.
7. Both the workmen filed their respective affidavits by way of evidence and examined themselves as WW-1. The management filed the evidence by way of affidavits of three witnesses. Two ofthem were examined in the Court.
8. The issue whether there existed any relationship of employer and employee between the parties was answered in favour of the workmen. As regards the issue whether their services were terminated illegally, the Labour Court relied on a document being a slip issued by Swami Dayanand Hospital, Shahdara showing that the workmen had taken treatment on 14th January 2005 suggesting that some incident had occurred on that date.
On that basis the Labour Court concluded that the workmen's services we;e terminated illegally by the management. However, instead of ordering reinstatement, the Labour Court directed compensation in the sum of Rs. 75,000/- to be paid to each of the workmen.
9. In both these writ petitions, despite service, none has appeared on behalf of the Respondent workmen.
10. Pursuant to an interim order passed by this Court on 3rd February 2011, the Petitioner has deposited 50% ofthe awarded amount in each ofthe petitions.
11. Learned counsel for the Petitioner submitted that the documents produced by the workmen showed that they were paid on per piece basis and not on the basis of a monthly salary. The documents produced by the workmen have been annexed as Annexure-F collectively to the writ petitions. Indeed they bear out the above contention ofthe learned counsel for the Petitioner. There is no document produced to substantiate i the contention of the workmen that they were being paid salary by the Petitioner manageme11t. The Labour Court has ignored the above evidence and has erroneously concluded that since the management had the right to reject the work of the Respondents and refuse to give them work there was a relationship of employer and employee. As held by the Supreme Court in Workmen of Nilgiri Cooperative Marketing Society Ltd. v. State of Tamil Nadu (2004) 3 SCC 513, the burden of showing the existence of an employer employee relationship was on the workmen. Far from proving the existence of such a relationship, the workmen in their crossexamination admitted that they were never issued any appointment letters and also that they never made any complaint to any authority regarding non-issuance of such letter. They also admitted to have never demanded any salary slip or for that matter, salary for the period December 2004 to 13th January 2005.
12. The conclusion ofthe Labour Court in the impugned Awards that the services ofthe workmen were illegally terminated is based on no evidence at all. The slip dated 14th January 2005 issued by the Hospital can hardly be taken to be proof of illegal termination of the workmen's services. Again, this finding of the Labour Court is
13. For the aforementioned reasons, this Court has no hesitation in setting aside the 1 impugned Awards dated 22nd May 2010 passed by the Labour Court in DID Nos. 129 and 130 of 2006. The amounts constituting fifty per cent of the awarded amount deposited in each petition by the Petitioner in this Court together with interest, if a!l~l accrued thereon will be returned to the Petitioner by the Registry or[1] proper identification within two weeks from today.
14. The writ petitions are allowed in the above terms, but in the circumstances, with no order as to costs. All pending applications are disposed of.
S. MURALIDHAR, J.