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2008 DIGILAW 1072 (DEL)

Anand Prakash v. Godrej Sara Lee Ltd.

2008-11-20

SIDDHARTH MRIDUL

body2008
JUDGMENT Siddharth Mridul, J. 1. By this writ petition, the petitioner has assailed the validity of the award dated 20th May, 2005 passed by the Labour Court-VII, Delhi, whereby the Tribunal dismissed the claim of the petitioner without granting him any relief. 2. Briefly, the facts are that: .(a) the petitioner claimed to be employed by the respondent as a Driver somewhere in the year 1995. The petitioner further claimed that he was not given any appointment letter by his employer; that he worked continuously with the respondent for four years till 15th December, 1998 when his services were terminated by the management without issuing any reason and without paying him retrenchment compensation or notice pay as required under law. He claimed that his termination was violative of the provisions of Section 25 of the Industrial Disputes Act, 1947 and that, therefore, he raised a dispute by sending a demand notice to the respondent through his counsel and also his trade union. The petitioner claimed that since the respondent did not reply to the demand notices, the petitioner approached the Department of Labour, Government of Delhi with his grievances. According to the petitioner, on the basis of his complaint the Labour Inspector visisted the respondent and tried to persuade the respondent to accede to the demand of the petitioner but to no avail. That the petitioner thereafter approached the Conciliation Officer but the matter could not be settled. Therefore, it was referred to the Industrial Adjudicator with the following terms of reference: .Whether the service of Sh. Anand Prakash have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect? .(b) The claim was contested by the respondent. The respondent took a preliminary objection that, since there existed no relationship between the parties, as the petitioner was never recruited or appointed by the respondent, no question of termination of petitioners service arose. .(c) On the pleadings of the parties the Industrial Adjudicator framed the following issues: 1. Whether there exists no employer and employee relationship between the parties? 2. As per terms of reference. .(d) The petitioner in support of his case filed his own affidavit Ex. WW1/A alongwith certain documents Ex. WW1/1 to Ex. WW1/6. The petitioner was cross-examined at length by the respondent. Whether there exists no employer and employee relationship between the parties? 2. As per terms of reference. .(d) The petitioner in support of his case filed his own affidavit Ex. WW1/A alongwith certain documents Ex. WW1/1 to Ex. WW1/6. The petitioner was cross-examined at length by the respondent. The respondent in response to the evidence of the petitioner filed the affidavit of one Sh. Amrut Rath, who was DGM (Human Resources) at respondent-companys Corporate Office, Mumbai and was stated to have been exercising immediate overall administrative control over the working of the offices including Delhi Regional Office and employees working therein. .(e) The deposition of the said Sh. Amrut Rath was as under: I state that the facts stated by the management in its WS and by me in this affidavit are correct and those of the said Shri Anand Prakash as stated by him in SOC and affidavit in evidence are incorrect and unreliable. I state that except adhoc casual daily wagers whom a Regional Manager may engage to cope with unforeseen passing contingency in the office, all appointments in our company on substantive basis are made by the management at Head Office; the appointees are issued appointment letters by the Head Office. There have been 8 to 10 permanent muster roll employees of the company (working in Delhi Regional Office) whose names have been entered in the daily attendance register for marking attendance. Photocopies of the Attendance Register of Companys employee working in Delhi Office during the period 1997 to 2001 are Annexure 1 to this affidavit and I can produce the original of the same if required by the Honble Court. The said Shri Anand Prakash herein had never been employed by the company and he never worked as a muster roll employee in the companys Delhi Regional Office. I state that all employees of the company are allowed all the statutory and contractual benefits such as weekly offs, religious and festival holidays, casual, sick and earned leaves, bonus, gratuity and benefits of PF and ESI under the relevant enactments according as an employee is eligible and entitled to. I state that salaries of all employees in Delhi Office are remitted by the Head Office though payable at Delhi. All the service record of the employees of Delhi Regional Office also are kept at Head Office (Corporate Office). I state that salaries of all employees in Delhi Office are remitted by the Head Office though payable at Delhi. All the service record of the employees of Delhi Regional Office also are kept at Head Office (Corporate Office). I state that the said Shri Anand Prakash concerned in the instant case was never recruited and employed by the company as he had never applied for employment in the company either directly or through any employment exchange and hence there was no requirement in law for the management either to issue any appointment letter or to terminate his services by verbal or written order. I state that the said Shri Anand Prakash herein was never an employee of the company and thus there never existed jural master and servant/employer-employee relationship between the company and the said Shri Anand Prakash mentioned herein above. I deny the issuance and/or receipts by the management any of the documents which are exhibits of Shri Anand Prakashs affidavit-in-evidence. The said Amrut Rath was also cross-examined at length on behalf of the petitioner. I deny the issuance and/or receipts by the management any of the documents which are exhibits of Shri Anand Prakashs affidavit-in-evidence. The said Amrut Rath was also cross-examined at length on behalf of the petitioner. .(f) After considering the evidence on record the Industrial Adjudicator observed that (a) the respondent was a corporate entity and had filed a very detailed affidavit from a high functionary, namely the Deputy General Manager, wherein it had been vehemently denied that the petitioner was ever employed by the respondent, (b) that in support of its case the respondent had also filed on record the attendance sheets for number of years showing the employees engaged by it, (c) that the petitioner in spite of the photocopies of the attendance sheets being on file never demanded the originals of these registers, (d) that the law is well settled that the initial burden of proving relationship of employer and employee lies on the workman, (e) that the workman in this case had not, firstly, specifically mentioned the date of appointment, (f) that the character of the respondent-company in this case was of importance, inasmuch as, it had proved on affidavit that its Head Quarter was at Bombay with regional office at Delhi and that all administrative activities are being done in a well documented and professional manner and that no employee of the company had ever been appointed without any appointment letter and (g) that on the other hand the petitioner had failed to prove a single letter or any other oral or documentary evidence to establish his employment or any payment having been made therefor to him by the respondent-company in the shape of copies of payment vouchers or pay register or any other record of public authority like Insurance, EPF, ESI etc., which is compulsorily to be maintained by the respondent-company. Furthermore, the Industrial Adjudicator observed that four years is a long period and existence of no evidence of any sort including records of leave taken etc. during this period in possession of the workman casts a serious doubt on the assertion of the workman that he had been employed by the respondent-company particularly when it had been strongly refuted by the respondent-company. (g) Coming to the Ex.WW1/3, Ex. WW1/5 and Ex. during this period in possession of the workman casts a serious doubt on the assertion of the workman that he had been employed by the respondent-company particularly when it had been strongly refuted by the respondent-company. (g) Coming to the Ex.WW1/3, Ex. WW1/5 and Ex. WW1/6 relied upon by the petitioner to demonstrate that they had been issued by the respondent-company in connection with his employment as a Driver, the Industrial Adjudicator found that Ex.WW1/3 was a letter allegedly written on the 9th August, 1996 by a different management of Transelektra Domestic Products Ltd. Ex.WW1/5 is a letter from Competent Automobiles Co. Ltd., for some fittings with Catalytic Convertor & Laminated Wind Screen. Ex.WW1/6 is a receipt of purchase of battery. The Industrial Adjudicator observed that these documents do not prove anything to show employment. The Industrial Adjudicator, therefore, was of the considered view that these documents by themselves were not sufficient to establish an employer and employee relationship and are of doubtful origin. The Industrial Adjudicator observed that these documents would have some value only if there were some basic primary nature of evidence of more acceptable type, as mentioned, namely ESI, PPF record maintained by the respondent- company or PPF number etc. which liability the respondent-company could not have escaped had the petitioner being working with them. Furthermore, the Industrial Adjudicator observed that the petitioner had not been able to question the detailed affidavit filed by the respondent-company including the evidence of the attendance sheets filed by them. None of the attendance sheets produced by the company shows the petitioner as an employee in the long period of four years. .(h) Therefore, on a total balancing of evidence the Industrial Adjudicator found that the petitioner had not been able to discharge his burden of evidence to prima facie show that he was a Driver of the respondent-company. Consequently, relying on the decision of the Supreme Court in Range Forest Officer v. S.T. Hadimani : (2002) I LLJ 1053 SC , where it was held that when the claim of the claimant was denied by the opposite party, it was then for the claimant to lead evidence to show that he had in fact worked for 240 days, the Industrial Adjudicator held that there existed no relationship of employer and employee between the parties. The reference was accordingly answered in the negative. 3. The reference was accordingly answered in the negative. 3. Before me the main grievance of the learned Counsel for the petitioner is that the Industrial Adjudicator failed to appreciate the true import of Ex.WW1/3, Ex.WW1/5 and Ex. WW1/6 and that, therefore, the finding of the Industrial Adjudicator is perverse. 4. On the other hand, counsel for the respondent urged that Ex.WW1/3 merely purported to be a letter addressed to "WHOM SO EVER IT MAY CONCERN". In this behalf, Counsel urged that firstly what was a driver doing with pay orders; secondly the document does not name any specific person and therefore does not inspire confidence and thirdly, why would the respondent-company issue pay orders when it was in the business of selling products. Even otherwise it was not issued by respondent-company but was forged in the name of its predecessor company. With regard to Ex.WW1/5, it was urged that an invoice for a Catalytic Convertor by Competent Automobiles could not certify the petitioner as an employee of the respondent-company. Similarly with reference to Ex. WW1/6, it was urged that a car battery could be purchased by anybody in the name of respondent-company. None of these documents were of any avail to the petitioner in his quest to establish the jural relationship between the parties as held by the Industrial Adjudicator. .5. The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its power of judicial review well within certain parameters. A series of judgments rendered by the Supreme Court in this context are mentioned below: 1. Sadhu Ram v. Delhi Transport Corporation : (1983) II LLJ 383 SC . 2. Harbans Lal v. Jagmohan Saran : AIR 1986 SC 302 . 3. Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors.: (1989)I LLJ 223 SC . 4. Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers Union and Anr. AIR 2000 SC 1508 . 6. From a conspectus of the above judgments the following legal position emerges. The High Courts should not interfere with the awards of Industrial Tribunal on mere technicalities. 4. Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers Union and Anr. AIR 2000 SC 1508 . 6. From a conspectus of the above judgments the following legal position emerges. The High Courts should not interfere with the awards of Industrial Tribunal on mere technicalities. Interference is permissible only if the order of the Industrial Adjudicator suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding contrary to that arrived at by the Industrial adjudicator is not the intent of exercising judicial review. 7. This Court under Article 226 of the Constitution of India cannot undertake the exercise of liberally reappreciating the evidence and drawing conclusions of its own on pure questions of fact. The findings of fact recorded by a fact-finding authority duly constituted for the purpose cannot be interfered with as long as they are based upon some material relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. 8. In the instant case in hand, there was sufficient material before the Industrial Adjudicator for recording its findings. Not only are the findings reasonable but the same have been arrived at after proper appreciation of the evidence on record. It is seen that in the present case, although, the workman in his evidence had mentioned four years as the period of service, he had not specifically mentioned any particular date of appointment. On the other hand, the management had filed on record attendance sheets for the relevant years showing all the employees engaged by it, whereas the petitioner had failed to prove a single letter or any other oral or documentary evidence to show he had worked with the respondent-company or that he had received any payment therefor. The petitioner did not produce any documents or other record to show that he was ever employed by the respondent-company and the latter had by its conduct demonstrated that all their administrative activities were being done in a professional manner and were well documented and that it did not hire any individual without issuance of an appointment letter. The petitioner did not produce any documents or other record to show that he was ever employed by the respondent-company and the latter had by its conduct demonstrated that all their administrative activities were being done in a professional manner and were well documented and that it did not hire any individual without issuance of an appointment letter. It is also seen that all appointments in the company for any term were made only by the companys Head Office at Mumbai and that the Officer Incharge of Branches including the branch in Delhi could only engage persons on ad-hoc basis on daily wages to cope with the unforeseen passing contigencies in that branch. In my opinion, the Industrial Adjudicator referring to the decision of the Supreme Court in Range Forest Officer v. S.T. Hadimani (supra), rightly came to the conclusion that the petitioner had failed to discharge the onus of establishing that there existed an employer and employee relationship between the parties. 9. In the present case the findings of the Industrial Adjudicator are based on the appreciation of evidence produced before it. I am of the view that the findings cannot be said to be based on no evidence at all, so as to, warrant a re-appreciation of evidence, by this Court. The limitations on the jurisdiction of this Court are well settled. A writ in the nature of certiorari may be issued only if the finding of the Industrial Adjudicator suffers from an error or jurisdiction or from a breach of principles of natural justice or is vitiated by a manifest or apparent error of law. No such issue has been established in the instant case on behalf of the petitioner. The Court will not countenance the picking of holes here and there in the award on trivial points and attempting thereby to frustrate the entire adjudication process before the Industrial Adjudicator on hypertechnical grounds as is being sought to be done by the petitioner in the present case. 10. For the foregoing reasons, I find no merit in the submissions made on behalf of the petitioner. The findings of the Industrial Adjudicator are based on material constituting ample basis for the findings recorded and the reasonable findings are unexceptionable. The Award does not suffer from any infirmity so as to warrant interference by this Court. 10. For the foregoing reasons, I find no merit in the submissions made on behalf of the petitioner. The findings of the Industrial Adjudicator are based on material constituting ample basis for the findings recorded and the reasonable findings are unexceptionable. The Award does not suffer from any infirmity so as to warrant interference by this Court. As a result the writ petition fails and is accordingly dismissed, but, with no order as to costs. Petition dismissed.