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2007 DIGILAW 1470 (DEL)

GHANSHYAM SHARMA v. MANAGEMENT OF AMBA CINEMA

2007-07-25

HIMA KOHLI

body2007
HIMA KOHLI, J. ( 1 ) THE petitioner has assailed the award dated 14th October, 2005 passed by the Labour Court wherein reference was answered against the petitioner workman and it was held that he had failed to prove that there existed a relationship of employer and employee between the management of the respondent cinema and the petitioner. ( 2 ) AT the admission stage, on 17th November, 2006, this court after hearing the learned counsel for the petitioner observed that the statement made by the petitioner to the effect that he was employed with the respondent had gone unchallenged, was not borne out from a perusal of the evidence adduced before the Labour Court. The other plea of the petitioner to the effect that the respondent had not disputed the fact that the petitioner worked in the organisation of the respondent and prepared certain documents was also recorded in the aforesaid order. It was also observed that the respondent management had disputed the relationship and stated that the petitioner was working as an employee of the security services. Thereafter, the counsel for the petitioner sought time to examine the case and address the court further. ( 3 ) COUNSEL for the petitioner submits that the petitioner was all along working with the respondent management and relevant records had been suppressed by the respondent management in respect of which an adverse inference ought to have been drawn by the Labour Court against the respondent management for non-production of the documents. It was also contended that there was no cross-examination of the petitioner on his assertions in his affidavit that he used to prepare gate report which used to be countersigned by the Manager of the respondent management and that his attendance used to be taken on a rough copy book. ( 4 ) COUNSEL for the petitioner referred to the evidence adduced by two witnesses, namely, Sh. Jagdish, WW-3 and Sh. Tek Chand Gupta, WW-4 and stated that the Labour Court wrongly discarded the statement of WW-3 on the ground that he was an interested witness and it wrongly interpreted the evidence of WW-4 to arrive at certain baseless conclusions. ( 5 ) I have gone through the impugned award as also the relevant affidavits and the depositions of the witnesses as enclosed with the writ petition. ( 5 ) I have gone through the impugned award as also the relevant affidavits and the depositions of the witnesses as enclosed with the writ petition. ( 6 ) A perusal of the award shows that the Labour Court has carefully examined all the documents placed before it at length before arriving at the conclusion that the petitioner had failed to prove that he was in the employment of the respondent management and further, that the respondent management had succeeded in proving that the petitioner was not its employee but was in the employment of M/s Malik Security Services and thus there was no relationship of employer and employee between the petitioner and the respondent management. For arriving at the said conclusion, the deposition of the petitioner was taken into consideration and it was observed that the petitioner had stated that he had no proof to establish that he was in the employment of the respondent management since 1975 as alleged by him. ( 7 ) THE oral testimony of other co-workers, namely, Sh. Jagdish, WW-3 and Sh. Tek Chand Gupta, WW-4 was also considered and it was observed that WW-3 was an interested witness as he had raised an industrial dispute against the respondent management which was pending in another Labour Court and further, that his services were allegedly terminated by the respondent management on 30th october, 1980. Further, it was observed that the said witness had not produced any document on record to prove that he himself had been in the employment of the respondent management during the relevant period when the petitioner was purportedly in the employment of the respondent management. ( 8 ) IN respect of the other witness, namely, Sh. Tek Chand Gupta, WW- 4, it was observed that he had contradicted the testimony of the other claimant, mahender Kumar, whose case was taken up and decided along with that of the petitioner, being a co-worker. By comparing the deposition of Mahender Kumar with that of WW-4, the Labour Court observed in the impugned award that the said witness had falsified the statement of the aforestated claimant as contrary to what was averred by the petitioner, the said witness having stated that the respondent management was issuing appointment letters to all its employees and all of them were covered under the ESI and were also holding ESI cards. Thus it was concluded in the award that had the petitioner and his other co-worker been in the employment of the respondent management, they would also have been issued appointment letters and would have been holding ESI cards and that nothing prevented them from complaining to the respondent management or an appropriate authority for issuance of an appointment letter as issued to other employees and for providing the benefits under the ESI Act as were being provided to other employees. ( 9 ) IN view of the above position, as it appeared from the records, it was held that the evidence of first witness was not reliable, he being an interested party and that of the second witness was contradicting the deposition of the petitioner. It was also observed in the award that the petitioner had admitted in his cross-examination that the respondent management used to employ workmen from M/s Malik Security Services and that Sh. J. D. Srivastava, the Manager of the respondent management used to check the bills of M/s Malik Security services to be forwarded to the respondent management for payment. Further, the respondent management had examined the proprietor of the Security Services as mw-1 who stated that both the petitioner and the other co-worker Mahender Kumar were in his employment and used to collect salary from him at his office address and that he had taken the contract of security from respondent management with effect from 1st September, 1980 and that wages of the petitioner and the other co-worker were paid by him and he had no office within the premises of the respondent management. Taking note of the appointment letters and the payment of wage register of the Security Service Agency read in conjunction with the deposition of the other witnesses and the evidence adduced by the respondent management, the Labour Court arrived at the conclusion that the petitioner had failed to establish the relationship of employer and employee between the respondent management and the petitioner. Accordingly, the reference was answered against the petitioner. ( 10 ) TAKING into consideration the detailed discussion by the labour Court on the entire evidence, the conclusions arrived at in the award cannot be interfered with under Article 226 of the Constitution of India. It is a settled position of law that this court is not to sit in appeal over the award passed by the Labour Court. ( 10 ) TAKING into consideration the detailed discussion by the labour Court on the entire evidence, the conclusions arrived at in the award cannot be interfered with under Article 226 of the Constitution of India. It is a settled position of law that this court is not to sit in appeal over the award passed by the Labour Court. It is only to examine the error of law or any perversity or illegality appearing on the face of the record. This court can also not lose sight of the fact that the Act provides for a mechanism for adjudication of the disputes between the workman and the management and endeavour of the court ought to be not to undo the awards on the basis of fine nitty gritties and puncture the same on the ground of minor loopholes. Instead, the endeavour ought to be normally to uphold the award and maintain the sanctity of the procedure adopted by the Labour Court. ( 11 ) IN the present case, it cannot be said that the conclusions arrived at by the Labour Court could not have been so arrived at on the basis of the deposition of the parties and the documents appearing on the record. It can also not be said that the conclusions arrived at are so perverse or illegal that they deserve to be interfered with. After carefully examining the entire award and perusing the deposition of the parties, this court does not deem it appropriate to interfere in the impugned award, there being no infirmity, illegality or perversity in the same. The writ petition is therefore dismissed along with the pending application.