Narender Kumar v. The Mgmt. of M/s Maman Chand Ramji Das

12. Learned counsel for the Petitioner further submits that the Labour Court is a creature of the statute, and its jurisdiction is circumscribed by the I.D. Act. Hence the adjudication before the learned Labour Court must be limited to the reference made to it under Section 10(4) of the I.D. Act. Section 10(4) of the I.D. Act permits the learned Labour Court to decide the issues referred to it. Hence the learned counsel for the Petitioner submits that the learned Labour Court ought not to have framed the additional issues and hence adjudication on these additional issues were beyond the jurisdiction and hence illegal.

13. For further cementing the case, the learned counsel for the petitioner has relied upon the judgements delivered in Kanpur Electricity Supply Co. Ltd. v. Shamim Mirza, (2009) 1 SCC 20; Delhi Cloth & General Mills Co. Ltd. v. Workmen, (1967) 1 SCR 882; Hindustan Housing Factory Ltd. v. Hindustan Housing Factory Employees Union, 1969 SCC OnLine Del 257;

14. With these submissions, the learned counsel for the Petitioner prays for the setting aside of the impugned Award.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

15. Per contra, Mr. Suryakant Singla, learned counsel appearing for the Respondent has challenged the present writ on the grounds that there existed no relationship of employer-employee between the management and the Petitioner. The petitioner was never appointed by the Respondent, but rather was under the employment of one of the partners of the Respondent in his individual capacity. It is further submitted that Sh. Rajesh Kumar, partner of the Respondent has categorically deposed in his affidavit (Exhibit MW1/A) that he used to pay salary to the Petitioner from his own pocket and it is wrong to suggest that petitioner was an employee of the Respondent.

16. Learned counsel furthered his case by submitting that it is a cardinal principle of law that the onus to prove is on the individual who asserts a fact. The petitioner, in this case, has asserted that he was under the employment of the Respondent, however, he failed miserably before the learned Labour Court to establish the same. The petitioner further failed to explain why he was singled out while names of the other counterparts were present in the wage register. Such other employees were contributing towards ESI and GPF and were deriving benefits of the Provident Fund (PF), bonus and other legal facilities because they were the employees of the Respondent. The petitioner even failed to examine any of the employees in whose presence the incident of 04.07.1996 allegedly took place to prove that the signatures were obtained by threat and coercion.

17. Further, it is submitted by the counsel that the Petitioner is not a ‘workman’ within the meaning of Section 2(s) of the I.D. Act. Earlier, the Petitioner himself in the legal notice dated 28.09.1996, stated that he was working as Supervisor since 14.01.1985. However, strategically, in order to bring the dispute within the purview of the legislation, the Petitioner in his statement of claims averred that he was appointed by the management as a clerk. Since no appointment letter was issued to the Petitioner; no question of aforesaid designations arises in such a situation.

18. Learned counsel for the Respondent, for buttressing his arguments, has placed reliance upon the judgement delivered in Umed Singh v. Presiding Officer reported as 2013 SCC OnLine Del 5149.

19. With these submissions, learned counsel for the Respondent prays for the dismissal of the present Writ Petition.

LEGAL ANALYSIS

20. This Court has heard the arguments advanced by both the parties and have perused the documents and Judgments relied upon by the parties with the assistance of the learned counsels for the parties.

21. Before adverting to the main dispute between the parties, this Court notes that the learned counsel for the Petitioner raised an objection regarding the framing of the additional issues by the learned Labour Court. Hence this Court finds it appropriate to examine the said preliminary objection at the first instance.

22. The appropriate Government referred the industrial dispute to the learned Labour Court with the following reference: “ Whether the discharge of service of Sh. Narender Kumar has been terminated illegally and/or unjustifiably by the Management and if so to what other relief is he entitled and what direction is necessary in this respect?”

23. Based on the pleadings of the parties, the learned Labour Court framed the following issues: “(i) Whether the Claimant is not a Workman?

(ii) Whether there exists no relationship of employer and employee between the parties?

(iii) As per the terms of reference.”

24. Section 10(4) of the I.D. Act, reads as follows: “(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be shall confine its adjudication to those points and matters incidental thereto.”

25. Hence from the aforesaid Section, it is clear that that the learned Labour Court can adjudicate the disputes which are ‘incidental’ to the terms of reference. In the present case, the Respondent raised objections; (i) to the effect that the Petitioner is not a workman and (ii) that the Petitioner was not an employee of the Respondent. Hence the learned Labour Court framed the additional issues as they were incidental to the terms of reference. Therefore, it is not correct to say that the additional issues framed by the learned Labour Court was beyond the terms of reference. It is also noted that the Petitioner never challenged the framing of these additional issues before the learned Labour Court. The petitioner is raising this objection for the first time before this Court. The Petitioner cannot raise this objection at this stage. In view of the same, the objection raised by the petitioner regarding the issues framed by the learned Labour Court is hereby rejected.

26. Main bone of contention in the present matter is the employment status of the Petitioner and subsequent termination/discharge of the services along with non- payment of arrears by the Respondent. Issue that requires judicial consideration of this Court relates to ascertainment of the fact as to whether the Petitioner was under the employment of the Respondent to claim benefit under the Section 25-F of the I.D. Act and for demanding reinstatement in the service.

27. On the bare perusal of the impugned award, it is found that the learned Labour Court rejected the claims of the Petitioner. Learned Labour Court arrived at the conclusion that the Petitioner was unsuccessful in establishing that he was indeed in the employment of the Respondent and was terminated illegally without compliance of Section 25-F of the I.D. Act. It is also evident from the impugned award that the learned Labour Court proceeded ahead with the opinion of the handwriting expert that disputed signature contained in final settlement/Exhibit WW1/M[1] and signature in admitted document belongs to the same person i.e. the Petitioner.

28. Firstly, as far as the expert opinion is concerned, it is prudent to examine the provision under Section 45 of the Indian Evidence Act, 1872 for better grasping of the issue: “Section 45. Opinions of experts. When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting, [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions ]are relevant facts. Such persons are called experts. Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.”

29. Section 45 of the Indian Evidence Act provides relevancy and weightage to the expert opinion with regards to the disputes relating to handwritten documents. It is no more res integra that courts should exercise great caution while determining the disputed handwriting. It is alleged by the Petitioner that the handwriting expert only examined the Xerox copies and not even analyzing/requesting for the original copy of the settlement slip, amounts to unprofessional practice and hence report submitted by the expert is completely unreliable.

30. In the present case, the Respondent took professional assistance of the handwriting expert to put a quietus to the dispute regarding the signature. The expert tendered his expert opinion vide the report dated 11.09.2003 (Exhibit MW2/1) after examining the disputed document (receipt) and admitted document (Exhibit WW1/3). It is an admitted fact that the handwriting expert examined the disputed signature from a document which was a xerox of the original document. It is admitted by the expert himself as given in the report dated 11.09.2003: “This is to certify that I have very carefully examined and compared with the aid of lenses, magnifiers and such geometrical appliances, which are needed for the purpose of comparison, the following signatures after the examination of their zerox copies and preparation of enlargements in my laboratory and detailed as under.”

31. It is pertinent to refer the judgment delivered by the Hon’ble High Court of Madhya Pradesh in Abhay Jain v. State of M.P. reported as 2018 SCC OnLine MP 1839 wherein it was observed that examination carried out by an expert must be based upon the original document, rather than examining the xerox copy of the same.

32. Similarly, the Hon’ble Apex Court in S.P.S. Rathore v. CBI reported as (2017) 5 SCC 817 touched upon the issue of reliability of the expert opinion in handwriting dispute matters. Relevant extract of the judgement is reproduced as below:

33. In view of the aforementioned judgments, it can be deduced that the report of the handwriting expert remains questionable and unreliable since the same is based on the examination carried upon xerox documents. Ergo, this court is hesitant to accept the expert opinion and to form an opinion solely and primarily on basis of the report. As discussed in detail in Abhay Jain (supra), that level of certainty of an expert opinion is adversely affected when the examination is done on copies of the original. Reasons and factors like loss of detailing, patching, fraudulent manipulation, paper etc. cannot be properly assessed and examined by the expert when only xerox copy is available to him/her. This Court holds the expert opinion/report as an unreliable source of comparison and hereby attaches no evidentiary value to the same in the present dispute.

34. Now, even when the authenticity of the settlement receipt remains questionable in the light of the expert opinion, the Petitioner has not persuaded this Court enough regarding his claims. It is the case of the Petitioner that he was an employee of the Respondent. This fact is disputed by the Respondent. Hence the burden of proof is on the Petitioner to prove that he was an employee of the Respondent. There is no documentary evidence produced by the Petitioner to prove that he was an employee of the Respondent Management. No appointment letter, salary slip or statement of any colleague has been brought on record that can substantiate the claim that the Petitioner was working with the Respondent and his services were discharged illegally. The Petitioner stepped into the witness box as WW-1 and stated that he worked with the Management for the period from 14.01.1985 to 04.07.1996. He further admitted that during the said period, he never signed the attendance register. WW-1 also admitted that there were 32 other employees, who were working with the Respondent Management. All these 32 employees were marking their attendance in the attendance register. The Petitioner was the only person whose name was not mentioned in the said attendance register. He further submits that all the other workers except the Petitioner used to contribute towards the ESI & GPF. Approximately for 11 years, the Petitioner never challenged the said position. The evidence of the Petitioner itself shows that the Petitioner was not an employee of the Respondent Management. The Respondent examined Mr. Rajesh, one of the Partners of the Management as MW-1. MW-1 categorically stated that the Petitioner was his personal staff and he used to pay him from his own pocket. Hence from the evidence of WW-1 and MW-1, it is clear that the Petitioner was not an employee of the Respondent. The Petitioner must be attending the office of the Respondent Management as the personal staff of one of the Partners. Petitioner failed to lead any evidence to prove that he was an employee of the Respondent Management. After examining the Labour Court Record (LCR) and other documentary evidence, this Court is of the view that the petitioner has not brought on record sufficient evidence to establish his employment with the Respondent. In the absence of any substantive proof of employment, it cannot be said that the Petitioner worked for the Respondent for 11 years. Therefore, due to want of evidence, this Court rejects the claim of the Petitioner that he was under the employment of the Respondent and served for 11 years.

35. It is a well settled principle of law that the Writ Court does not sit in appeal over the decision of the learned Labour Court. It does not reappraise the evidence which formed the basis of the decision by the learned Labour Court. So long as there was evidence before the learned Labour Court to arrive at a particular conclusion, the Writ Court will not adjudge the sufficiency of such evidence. In the light of the abovesaid discussion, this Court is of the opinion that the impugned Award does not suffer from any infirmity as the learned Labour Court committed no error in holding that the petitioner was not under the employment of the Respondent due to want of evidence.

36. Albeit, this Court is in concurrence with the learned Labour Court with respect to the employment of the Petitioner. As regards the liability to pay the balance amount of Rs. 17,500/-, this Court finds that the learned Labour Court took an equity based view and directed the Respondent to pay 10 months’ salary as full and final settlement amount to the Petitioner. The Respondent never challenged this aspect. The perusal of the order sheets shows that on 06.08.2007, the Respondent made the said payment to the Petitioner. Hence in view of the same, this Court is not inclined to interfere with the impugned Award.

37. In view of the detailed discussion made hereinabove, this Court is of the considered view that there is no perversity or illegality in the impugned Award which requires the interference of this Court. Accordingly, the impugned award dated 16.07.2004 passed by the learned Labour Court, Karkardooma, Delhi is upheld.

38. The Present writ petition is dismissed. No order as to the cost.

GAURANG KANTH, J. JANUARY 31, 2023