Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 27.10.2017
Judgment pronounced on: 23.11.2017
+ W.P (C) No. 18567/2004
KHUBHI RAM ..... Petitioner
Through: Mr.Avadh Kaushik, Adv.
versus
M/S. ASHOK LEYLAND LTD. ..... Respondent
Through: Mr.Arvind Kumar Gupta, Mr.
Amit Mehta and Mr.Prashant
Bhardwaj, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
1. These proceedings emanate from reference No.F.24 (1144)/93-
LAB, whereby and whereunder the Government of National Capital
Territory of Delhi, through the Secretary (Labour), referred an
industrial dispute, raised by the petitioner, for adjudication to the
learned Labour Court (II), Karkardooma. The contention of the
petitioner was that, though he had served the respondent, as dispatch
th th
clerk, satisfactorily from 24 November 1986 to 20 August 1992, his
th
services were abruptly terminated on 20 August 1992, without
complying with the mandate of Section 25F of the Industrial Disputes
Act, 1947 (hereinafter referred to as “the Act”). He contended that,
th
though he had visited the office of the respondent till 30 August
W.P.(C) No.18567/2004 Page 1 of 22
1992, he was not permitted to work, thereby compelling him to raise
the aforementioned industrial dispute.
2. The term of reference as drawn up by the Government while
referring the aforementioned industrial dispute for adjudication to the
learned Labour Court read thus:
“Whether the services of Shri Khubhi Ram
have been terminated by the management
illegally and/or unjustifiably and if so, to what
relief is he entitled and what direction are
necessary in this respect?”
3. Statement of Claim was filed, by the petitioner, before the
th
learned Labour Court, on 04 November 1993. The petitioner sought,
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therein, to assail his termination, by the respondent, on 20 August
1992, on the ground that it had been effected without complying with
Section 25F of the Act. He also submitted that, though he had been
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employed, with the respondent, since 24 November 1986, as dispatch
clerk, on wages of Rs.1100/- per month, the respondent had, illegally,
not issued any appointment letter to the petitioner. Similarly, he
submitted that no attendance card, leave book, ESI card and Provident
Fund Account etc. were maintained by the respondent qua him. It was
also contended that the respondent did not even pay him minimum
wages and that his abrupt termination was a retaliation to a demand,
by him, therefor. Salary, the petitioner contended, was paid to him
against vouchers.
4. The Statement of Claim further stated that the petitioner had,
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on 14 November 1992, issued a demand letter/notice to the
W.P.(C) No.18567/2004 Page 2 of 22
respondent, demanding that he be taken back in service. On finding no
response thereto, the petitioner raised an industrial dispute which, as
already stated hereinabove was referred by the appropriate
Government to the learned Labour Court for adjudication.
5. In support of his case, the petitioner attached with his Statement
of Claim, the following documents, by way of his evidence:
1. Photocopy of the letter date. 26.7.90 vide no. 397/20.
Govt. of India Dept. of posts for issue of the license for
Franklin Machine vide Mfg. No. of the machine
K4784/XUN(IV)
2. Photocopy of the letter date. 29.69.92 vide no.
Tech/FM/D(C)- 387/92 issued by Govt. of India of
posts for license for Franklin Machine as above.
3. Photocopy of document/ Franklin Machine window
ticket-vide license no. date. Tech/FMD(C)-
397/92dt.5.6.92to valid up to 4.6.95.
4. Photocopy of dispatch register from 12.1.88 to 3.2.88 in
handwriting of the workman Sh. Khubhi Ram in 11
pages.
5. Photocopy of the dispatch register from 12.1.88 to
3.2.88 in handwriting of the workman in 7 pages.
6. Photocopy of dispatch register from 10.2.88 to 26.2.88
in handwriting on workman in 6 pages.
7. Photocopy of the dispatch register from 3.388 to
29.3.88 in handwriting of the workman in 9 pages.
8. Photocopy of the dispatch register from 6.4.88 to
29.4.88 in handwriting of workman in 10 pages.
9. Photocopy of dispatch register from 2.5.88 to 26.5.88 in
handwriting of the workman 6 pages.
10. Photocopy of dispatch register from 2.6.88 to 27.6.88
in handwriting of workman 4 pages.
11. -do- from 12.7.88 to 13.7.88 – 2
pages.
12. -do- 2.9.88 to -do 3
pages
W.P.(C) No.18567/2004 Page 3 of 22
13. -do- 27.10.88 to 28.10.88 –do 6 ”
14. -do- 22.11.88 to 28.11.88-do 6 ”
15. ” 1.12.88 to 9.12.88” 12 ”
16. ” 14.8.89 to 23.8.89 ” 19
”
17. ” 12.9.89 to 18.9.89 ” 20
”
18. ” 26.10.89 to 31.10.89 ” 13 ”
19. ” 1.11.89 to 28.11.89 ” 13
”
20. ” 30.12.89 ” 4
”
21. ” 6.6.90 to 6.1.91 ” 3
”
22. ” 12.12.91 ” 2
”
23. Photocopy of Annexure „C‟ (Dept. of parts),
(counterfoil) obtained the signature of workman pages
1 to 7 date. 22.10.91 to 30.1.91.
24. -do- 1.1.91 to 29.11.91 ” 10 pages
25. ” 10.12.91 to 30.12.91 ”10 ”
26. ” 6.1.92 to 30.1.92 ” 7 ”
27. ” 1.2.92 to 29.2.92 ” 14 ”
28. ” 5.2.92 to 31.3.92 ” 10 ”
29. ” 1.4.92 to 29.4.92 ” 15 ”
30. ” 8.5.92 to 28.5.92 ”11 ”
31. Photocopy of dispatch register 18.6.92 to 26.6.92 (13
pages) in handwriting of workman and approved by
administrative officer, Sh. N. Venkatraman.
32. ” 1.7.92 to 3.7.92 (6pages) -do-
33. –do- 13.8.92 to 14.8.92(4 pages) ”
34. ” 1.6.92 to 26.6.92 and 3.7.92 approved by
Regional account and regional manager and signed by
the workman.
35. Photocopies of Annexure C (counter folio) 7.7.92 to
29.7.92 12 pages
36. ” 1.8.92 to 14.8.92 -do-
37. ” dispatch register from 19.1091 to 14.10.92 (postal
expenses with postal stamped) pages 18 prepared by the
workman
W.P.(C) No.18567/2004 Page 4 of 22
38. ” of Annexure-B(to a company each consignment of
Franked postal articles tendered for dispatch (date
1.01.0.91 to 14.8.92) prepared by workman and signed
by the workman-pages-109.
39. ” medical bill dt. 29.6.88 for 14 days approved by
regional accountant and Regional manager on 14.7.88.
40. ” of details of stationery received by workman on
behalf of the management from Shyam Stationery dt.
7.10.91.
41. ” of bill approved by Regional Accountant &
Regional Manager, dt. 31.9.91 to 4.10.91
42. ” Modi Xerox machine received by workman on
behalf of the management signed by divisional manager
on 25.2.92.
43. ” dt. 30.6.92 ” (including 4 other pages).
44. Bill machine Modi Xerox on 31.7.92 received by
workman approved by division manager with stamp
(46pages),
45. Stationery bill dt. 7.10.91 received by workman
approved by Regional Account & manger….4p.
46. Photocopy of authority to the workman by divisional
manger of payment receiving from Account No. 01
CHC 6004 on 23.7.92, 21.7.92, 28.7.92, 25.7.92,
24.7.92, 1.8.92, and 18.8.92
47. Photocopy of account no. 272 opened on 15.7.88
Canara Bank in B.S.Z Marg, New Delhi in the name of
workman at the address on the management.
48. Photocopies of life insurance policies in the name of
workman at the address of the management.
49. The life insurance corporation of India, dt. 28.7.89 and
installment slips are Annexured herewith.”
6. The respondent filed its Written Statement, refuting the case
sought to be set up by the petitioner, and adopting the stance that the
petitioner had never been employed with the respondent at all. The
alleged relationship of employer and employee, between the petitioner
and respondent, was, therefore categorically and unequivocally
denied, by the respondent.
W.P.(C) No.18567/2004 Page 5 of 22
7. The petitioner filed his affidavit-in-evidence, in response
whereto the respondent initially filed an affidavit, in evidence, of one
Shave Thakur Singh, Senior Executive and, thereafter, filed another
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affidavit, dated 17 January 2000, of Atul Andley. Reliance was
placed, by the respondent on the latter affidavit, and Atul Andley,
appeared as MW-1 on behalf of the respondent.
8. The record of examination, and cross-examination, of the
petitioner, and the respondent, merit reproduction, in extenso , thus:
(i) WW-1 – the petitioner:
“The affidavit Ex. WW1/A bears my signature
which I tendered in evidence along with
document Ex. WW1/1 to WW1/62. At present I
am unemployed and could not get employment
despite my best efforts.
xxxx by Sh. Aravind Gupta, Ld. A.R. of the
management.
No appointment letter was issued to me at the
time of my appointment. The salary used to be
paid to me against vouchers. I have vouchers in
my possession but the same I have not filed on
record. I am Xth class fail. I applied for the post
of dispatch clerk to General Manager Mr. MD
Kapoor and that time Shri MD Kapoor used to
sit in the office of management at Tej Bhawan
near ITO. I do not have the copy of my
application addressed to Sh. MD Kapoor for my
appointment. It is incorrect that I never applied
for any job with the management. It is also
incorrect that they had never worked with the
W.P.(C) No.18567/2004 Page 6 of 22
management. It is incorrect that Sh. MD Kapoor
was never a General Manager with the
management. The registered office of the
company of management is Raja Ji Salai Marg,
Madras. In Delhi there is Regional Office of
Delhi. It is incorrect that General Manager does
not sit in the Regional Office and in the
hierarchy there is Regional Manager. It is
incorrect that the copy of dispatch register Ex
WW1/11 to Ex WW 1/54 are not dispatch
registers of the management. It is incorrect that
these are forged and fabricated document. There
is no stamp of the management on the dispatch
register because there is no such practice of
putting stamp of the company on dispatch
register. It is correct that Sh. R. P. Vohra was
Regional Manager in the 1986 and 1987.
My family consists of myself, my wife and
three sons. My eldest son is 13 years old and the
next son is 11 years old and my youngest son is
9 years old. All the three are studying in the
MCD School.
My father does agriculture in the village and
sends beej etc. to my house. I also take my
family expenses for my elder brother. It is
incorrect that I have gainfully employed and
getting salary by doing service. It is incorrect
that I am doing service apart from the document
already filed by me on record. I do not have any
document to show that I was employed with the
management. It is wrong to suggest that I was
never in the employment of the management.”
(ii) MW-1 – Sh. Atul Andley:
“I have filed the affidavit dated 17.1.2000. The
same is based on information relied from the
record. From the record Sh. Khubi Ram was
W.P.(C) No.18567/2004 Page 7 of 22
never in employment with Ashok Leyland Ltd.
I have brought original attendance register for
the period 1987 to 1993. The affidavit is Ex
MW 1/6. The said affidavit has been signed by
me at point-A. In addition to this, all the
employees were paid salary by cheque and with
payslip. Minimum qualification of all the
th
employees is 10 pass as per our company‟s
policy.
xxx on behalf of Management by AR of the
Workman.
I am only deposing on the basis of record, and
not on personal record. I do not know the
concerned workman. I never saw workman in
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my office. 1 time I saw the workman in Labour
Commissioner office. I cannot tell as to whether
the management filed any reply before the
Conciliation Officer or not. I cannot show the
reply filed before the Conciliation Officer
today. I do not have any knowledge if the
workman namely, Khubi Ram was associated in
any capacity with our office or not. Khubi Ram
never used to come in the office as per my
knowledge. I cannot say whether Ex. WW 1/7
was sent on behalf of the company or not. It is
correct that the two notices dated 14.11.1992
and 17.8.1992 were received by the
management and reply to those letters were
given, but I do not remember the dates of those
replies. Ex WW 1/7 was the reply sent by our
Advocate. I do not know about the
administrative policy for reviewing the
records/documents/register once in two years
and which are not likely to be referred back are
destroyed. I will have to check in my office and
if available, I will produce them on the next
date of hearing.
W.P.(C) No.18567/2004 Page 8 of 22
Deferred in view of these facts and
circumstance, the further cross-examination of
the witness is deferred and the witness is
directed to produce the above said documents.
(Continued)
There is no policy in writing with regard to
weeding of the record which were called for by
the workman vide his Application dated
7.7.1997. An affidavit dated 6.8.1998 was filed
by selling B. Khaitan, Regional Manager of the
company in this regard on the Court file. It is
wrong to suggest that the records sought for
vide application dated 7.7.1997 was not
produced intentionally to deny the claim of the
workman. I cannot say why Khubi Ram has
filed case against the management. (Objected
to). We never keep any casual or temporary
employee in the company i.e. Delhi office. It is
incorrect to suggest that Sh. Khubi Ram was an
employee of the company and he worked in
company w.e.f. 24.11.1986 as Dispatch Clerk.
It is wrong to suggest that the management
terminated the services of Sh. Khubi Ram on
20.8.1992. Vol, as he was not in our employee
at any time. I cannot say whether any Labour
Inspector had visited the office of the company
in the year 1992. It is incorrect to suggest that I
am deposing falsely.”
9. Having recorded the evidence of the petitioner and Shri Atul
Andlay, MW-1, on behalf of the Management of the respondent, the
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Labour Court proceeded, vide the impugned Award dated 13
November 2003, to, at the outset, frame the following two issues, as
arising in the case for its consideration:
W.P.(C) No.18567/2004 Page 9 of 22
“(i) Whether there exist relationship of servant and master
between the parties?
(ii) To what relief, if any, is the workman entitled in terms
of reference?”
10. The learned Labour Court, thereafter, proceeded to decide both
the issues, thus framed, against the petitioner. Dealing with Issue No
(i), the Labour Court held that the documents relied upon by the
petitioner, failed to establish any employer-employee relationship
between him and the respondent, as there was no document pertaining
to the year 1986, when the petitioner claimed to have been employed
by the respondent. The account book and LIC policy filed by the
th
petitioner, too, it was noted, pertained to 15 July 1988, and to the
period after 1989, respectively. It was further held that no adverse
inference could be drawn, against the respondent, for not producing
the record demanded by the petitioner, as it was the stand of the
respondent that it had no employer-employee relationship with the
petitioner. On the ground, therefore, that the petitioner had failed to
th
prove his engagement, with the respondent, w.e.f. 24 of November
1986, at the rate of Rs. 1100/– per month, the Labour Court decided
Issue No (i) against the petitioner, and in favour of the respondent-
Management. Having thus decided Issue No (i) against the petitioner,
the Labour Court, quite naturally, went on to hold that Issue No (ii)
was also, per corollary, required to be decided in favour of the
Management as, in the absence of any employer-employee
relationship between the petitioner and the respondent, there could,
W.P.(C) No.18567/2004 Page 10 of 22
quite obviously, be no question of termination, of the former by the
latter.
11. The present writ petition, at the instance of the petitioner,
th
challenges the aforementioned award, dated 13 November 2003.
12. The petitioner has, in the writ petition, emphasized the
following submissions as being, in his estimation, more than sufficient
to establish the employer-employee relationship between the
respondent and himself:
(i) He had reiterated, in his cross-examination, the fact that
no appointment letter had been issued to him, and that salary
was being paid to him against vouchers.
(ii) The Dispatch Register was maintained in the petitioner‟s
handwriting, using the Franklin Machine. All pages of the
Dispatch Register were exhibited, before the Labour Court.
(iii) The petitioner had been authorized, by RP Vohra,
Regional Manager of the respondent-Company, to withdraw
money from the bank. The said authority letter, and cheques
issued, pursuant to such authority, had been filed by the
petitioner and proved before the Labour Court.
(iv) The petitioner had been reimbursed the expenses incurred
by him on the conveyance used for carrying out the work of the
respondent. Copies of the vouchers approving the said
payments, as issued by the sanctioning authority (the Divisional
Manager) had been filed and exhibited before the Labour Court.
W.P.(C) No.18567/2004 Page 11 of 22
(v) Satisfactory installation of the photocopy machine
purchased by the respondent, had been certified by the
petitioner. All papers, relating to the said procurement and
installation of the machine, bore the petitioner‟s signature, and
had been exhibited before the Labour Court.
(vi) The LIC policy of the petitioner showed the address of
the respondent, and the fact that the petitioner was employed
there.
(vii) The petitioner had also received, on behalf of the
respondent, stationery, purchased from Shyam Stationers, and
certified the same. These documents were also exhibited before
the Labour Court.
(viii) The finding, of the learned Labour Court, to the effect
that none of the documents filed by the petitioner pertained to
1986, indicated non-application of mind, as the petitioner had,
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in fact, worked with the respondent from 24 November 1986
th
to 28 August 1992.
(ix) The stand of the respondent was vacillating in nature. In
its response to the demand notice issued by the petitioner, the
contention of the respondent was that the petitioner used to
supply tea and coffee at the office of the respondent, for which
it was paid, and that the petitioner had never been regularly
employed by the respondent. As against this, in the written
submission filed before the Labour Court, no such stand was
taken, though the employer-employee relationship, between the
petitioner and respondent, was denied.
W.P.(C) No.18567/2004 Page 12 of 22
(x) The evidence produced by MW-1 Atul Andley was
entirely unworthy of credence, in view of his own statement
that his deposition was based solely on the basis of the records,
and on the fact that he did not find the petitioner‟s name
reflected in the employees‟ register from the year 1987 to 1993.
He also went on to state that he did not know whether the
petitioner had been employed by the respondent or not. He was
unable to produce the originals of the documents filed by the
petitioner, but admitted that he was unaware of any weeding out
policy in the respondent-Company.
13. The respondent has filed a counter-affidavit, in response to the
writ petition, contending, inter alia , that the attendance register
maintained by the respondent could be regarded as conclusive proof
of the employees employed by it. The absence of the name of the
petitioner, therein, indicated that the petitioner had never been
employed by the respondent. The allegation that the stand of the
respondent was vacillating, was also denied, stating that the reply, by
the respondent, to the demand notice of the petitioner, in stating that
the petitioner was supplying tea and coffee to the respondent, for
which he was paid, only went to support the stand of the respondent,
that the petitioner had never been employed by it. In fine, the
respondent, predictably, prays for dismissal of the writ petition with
costs.
W.P.(C) No.18567/2004 Page 13 of 22
14. I have perused the records the case, including the records of the
court below, and heard Mr. Avadh Kaushik and Mr. Arvind Kumar
Gupta, learned counsel for the petitioner and respondent respectively.
I have also gone through the written submissions filed by them.
15. Mr. Kaushik, appearing for the petitioner, submits that his
client had adduced more than sufficient material, before the Labour
Court, to establish the fact that he was the respondents‟ employee.
Particular attention was, in this regard, invited to the LIC policy, the
bank account of his client, the cheques issued by the respondent,
bearing the petitioner‟s signature on the reverse, and his client‟s
signature on the Dispatch Register, stated to have been maintained, by
him, on behalf of the respondent. He also emphasized the fact that
MW-1, Atul Andlay, had admitted to having deposed, as he had, only
on the basis of his perusal of the records, and not on his personal
knowledge, as also the fact that he was ambivalent regarding the
employment, or otherwise, of the petitioner with the respondent.
16. Per contra , Mr. Gupta, learned counsel for the respondent,
submitted that the case of the petitioner deserved to be dismissed even
for the sole reason that, despite his repeated assertion, during his
cross-examination and thereafter, that he had, in his possession, the
vouchers whereagainst salary was, as per the petitioner, disbursed to
him, no such vouchers had been produced by him. Mr. Gupta asserts
that, had such vouchers been produced, the matter would have rested
there; the inability, of the petitioner, to produce the said vouchers,
W.P.(C) No.18567/2004 Page 14 of 22
would, contrariwise, he submits, establish the falsity of the
petitioner‟s case. He stressed the fact that his client had, before the
Labour Court, filed the Attendance Register relating to the
respondent, which did not bear the name of the petitioner. He refuted
the reliability of the Dispatch Registers, also submitting, in this
regard, that they had not been put to MW-1. He drew my attention to
the apparent disconsonance in the handwriting wherein, on the body
of the “reimbursement slips” stated to have been issued by the
respondent, reimbursing conveyance charges incurred by the
petitioner, the name of the petitioner, and the description of the slip
had been entered. That apart, Mr. Gupta emphasized the fact that all
documents filed by the petitioner were photocopies, and no originals
had been tendered in evidence. In these circumstances, Mr. Gupta
would assert, no case for interference, by this court, with the
impugned Award of the Labour Court, exists.
17. Paras 7 and 8 of the impugned Award, which contain the entire
reasoning thereof, the gist whereof already stands extracted in para 9
( supra ) read as under:
“7. I have considered respective submissions of both the
Ld ARs and gone through the record. The workman is relying
on the dispatch registers produced by him belonging to the
management, which is the evidence to establish his
employment with management. It is admitted case of the
workman that no appointment letter issued by management to
him. The workman also not produced any ESI card, PF or any
other documents issued by any Govt. Department in his name.
In my considered opinion these documents relied by
workman failed to establish any relation between the
employment of the workman with the management. Now
W.P.(C) No.18567/2004 Page 15 of 22
coming to the documents Ex. WW 1/56, Account book Ex
WW 1/57 to WW 1/65, LIC Policy in which workman has
stated his name and address of the management. There is no
document in these documents pertaining to the year 1986.
th
The Account Book is also dated 15 July 1988 and the LIC
Policy also shows in the year 1989 thereafter. Hence there is
no documents proved by workman to show that in the year
1986 he was employee of the management. In my considered
opinion, in these circumstances, no adverse inference can be
drawn against the management for not producing the record
which was demanded by workman during the trial because
constantly since they are rising of the alleged dispute
management stand is that there is no relationship of employee
and employer between the parties. The management witness
MW1 stated that there is no policy of destruction/weeding out
of the record.
8. On the basis of observations and discussions, the
workman failed to establish on record the relationship with
the management as claimed in the statement of claim w.e.f.
th
24 November 1986 and a monthly salary of Rs. 1100/– at the
post of dispatch clerk. Hence this issue is decided in favour of
the management against the workman.” (Emphasis supplied)
18. A reading of the above extracted passages from the impugned
Award reveals that the Labour Court has proceeded on two premises,
viz. that (i) none of the documents produced by the petitioner in
evidence related to the year 1986; ergo, the petitioner had failed to
demonstrate that he had been employed by the respondent in the said
year, and (ii) the respondent could not be faulted for not producing the
originals of the documents requisitioned by the petitioner, as the
stand, of the respondent, from the beginning, was that the petitioner
had never been its employee.
W.P.(C) No.18567/2004 Page 16 of 22
19. These two findings, in the first place, are mutually
disconsonant. If the respondent could not be faulted for not having
produced the original documents requisitioned by the petitioner
because its stand was that it had never employed the petitioner in its
organization, equally, the petitioner could not be faulted for not
producing the appointment letter issued to him in 1986, because his
stand, from the beginning, had been that no such appointment letter
had been issued. The amnesty, from producing the original
documents, which the Labour Court extended to the respondent,
ought, therefore, to have equally been extended to the petitioner.
What‟s sauce for the goose is, equally, sauce for the gander. Had it
been so extended, the first plank of the reasoning of the Labour Court,
as contained in the impugned Award, would have fallen to the ground.
20. Secondly, the Labour Court has completely erred in attaching
no significance, or importance, whatsoever, to any of the documents
produced by the petitioner in his defence, as establishing the fact that
he had been working, with the respondent, during the period 1987 to
August 1992, merely because he could not produce any document, for
the period of just over a month, during which he, as per this version,
had worked with the respondent in 1986. It was obviously not open to
the Labour Court to close its eyes to all the evidence produced by the
petitioner, merely because the said evidence related to the period from
1987 onwards, and there was no evidence of his employment, with the
th
respondent, for the period of one month, from 24 November 1986, to
st
31 December 1986. Such an approach, as exhibited by the Labour
W.P.(C) No.18567/2004 Page 17 of 22
Court in the impugned Award, amounts to “perversity”, which has
been defined in, inter alia , Damodar Lal v. Sohan Devi, (2016) 3
SCC 78, S R Tiwari v. Union of India, (2013) 6 SCC 602, Rajinder
Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, Kuldeep
Singh v. Commissioner of Police, (1999) 2 SCC 10, Gamini Bala
Koteswara Rao v. State of AP, (2009) 10 SCC 636, Babu v. State of
Kerala, (2010) 9 SCC 189 and Dr. Sunil Kumar Sambhudayal Gupta
v. State of Maharashtra, (2010) 13 SCC 657, as being attributable “to
a judicial/quasi judicial decision if the decision ignores/excludes
relevant material, considers irrelevant/inadmissible material, is against
the weight of evidence, or so outrageously defies logic as to suffer
from irrationality”. Perversity, it is trite, vitiates every decision which
it even tinges, and is one of the well-recognized grounds on which a
writ court, exercising jurisdiction under Article 226 of the
Constitution of India, can interfere with the decision of the Labour
Court or Industrial Tribunal. In its apparent obsession, with the
submission of the petitioner that he had been employed with the
th
respondent on 24 November, 1986, and its perceived failure, on the
petitioner‟s part, to produce any proof thereof, the Labour Court has
chosen to ignore, entirely, the volume of evidence cited, by the
petitioner, to establish his having worked as the respondent‟s
employee, thereafter. The Labour Court failed to appreciate the simple
truism that a runner, who had been seen running the race, must have
run it, even if there was no evidence of the firing of the shot that
flagged off the race.
W.P.(C) No.18567/2004 Page 18 of 22
21. Having said that, there is considerable substance, in the
grievance, of the respondent, as voiced by learned Counsel appearing
on its behalf before me as well, that no justification had been
provided, by the petitioner, for not producing the “vouchers”,
whereagainst it was being sought to be contended that salary was
being paid to the petitioner. Learned counsel for the respondent
asserts that, had the said “vouchers” been produced, the issue would
not brook any further debate; in the absence of such production,
however, it is sought to be contended that an adverse inference has
necessarily to be drawn against the petitioner, who had repeatedly
been stating that he was in possession of the said vouchers.
22. Indeed, the Labour Court seems to have misdirected itself even
on the basic issue to be decided. Issue No (i), as correctly framed by
the Labour Court, was whether there existed, between the petitioner
and respondent, a master-servant, or employer-employee, relationship.
While the adducing, by the petitioner, of the order, if any, whereby
and whereunder he was employed by the respondent in 1986, could
have clinched this issue in his favour, the learned Tribunal
significantly erred in presuming that the failure, on the part of the
petitioner, to produce any such order, clinched the issue against him.
The existence of an order of employment/order of appointment is not
a necessary sine qua non for there to exist an employer-employee, or
master-servant, relationship. It is an unfortunate, but well-recognised
and often adopted, practice, by exploitative employers, to secure
services of workmen without issuing formal appointment orders to
W.P.(C) No.18567/2004 Page 19 of 22
them, obviously with the intention of retaining the hire-and-fire
bargaining balance. As such, the issue of existence, or nonexistence,
of master-servant relationship, between the petitioner and respondent,
could not be conclusively decided solely on the basis of the fact that
no proof of actually being taken into employment had been adduced
by the former. In fact, to be fair to the respondent, it was correctly
accepted, not only in the pleadings, but also orally during arguments
before me by Mr Gupta, representing it, that, had the “vouchers”,
whereunder the petitioner claimed to have been disbursed his monthly
wages, been produced, Issue No. (i) could probably have been decided
on that sole ground alone. That he repeatedly failed to do so, despite
stating that he was in possession of the said vouchers, is an undeniable
fact, and the effect thereof would be an issue to be considered while
adjudicating the dispute. (This court expresses no view thereon.)
Unfortunately, the impugned Award entirely ignores this aspect of the
matter as well. In sum, the Labour Court has proceeded on the sole
consideration of non-production, by the petitioner, of proof of actually
having been employed, by the respondent, in November 1986, as
stated by the petitioner, and has held against the petitioner solely on
that ground. Resultantly, all other evidence, produced by the petitioner
to support his case, as well as by the respondent to oppose it, has been
disregarded. As already opined hereinabove, this amounts, clearly, to
“perversity”, vitiating the impugned Award.
23. The impugned Award, therefore, has necessarily to be set aside,
the Labour Court failing to apply its mind to all the evidence
W.P.(C) No.18567/2004 Page 20 of 22
produced, by the petitioner, in his defence, as establishing the factor
of the petitioner having worked with the respondent during the period-
November 1986 to August 1992, as well as by the respondent in
opposition thereto.
24. As an inevitable consequence, the finding, in the impugned
Award, on Issue No (ii), also, would be required to be set aside, as the
Labour Court has decided the said issue in favour of the Management,
and against the petitioner-workman solely on the basis of its findings
regarding Issue No (i).
25. As the Labour Court has proceeded without applying its mind,
at all, to the evidence adduced, before it, by the petitioner, as well as
the respondent, I have no option but to set aside the impugned Award,
th
dated 13 November 2003, and to remand both the issues, as framed
by the Labour Court in the impugned Award, to it for determination
th
de novo and, resultantly, to answer the reference, dated 7 July 2004,
made to the Labour Court by the Government of the National Capital
Territory of Delhi, afresh. In case either side wishes to lead
additional evidence, in support of its stand, an appropriate application,
therefor, would have to be moved before the Labour Court, and it
would be for the Labour Court to decide whether to allow, or
disallow, the request, on merits, as deemed appropriate.
26. It is ordered accordingly.
W.P.(C) No.18567/2004 Page 21 of 22
27. In view of the fact that the petitioner claims to have been
th
terminated from service on 20 August 1992, i.e. 15 years ago, the
Labour Court is requested to complete the de novo proceedings, and
pronounce its decision thereon, as expeditiously as possible and, at
any rate, within a period of 6 months from the date of receipt of a
certified copy of this judgement. Needless to say, it would be open to
either side, if aggrieved by such decision, to seek appropriate legal
remedies, as available under the law.
28. It is made clear that no opinion has been expressed, by me, on
the merits of the dispute between the parties.
29. In the facts and circumstances of the case, there shall be no
order as to costs.
C. HARI SHANKAR
(JUDGE)
NOVEMBER 23, 2017
neelam/nitin
W.P.(C) No.18567/2004 Page 22 of 22