Dharminder vs Presiding Officer, Labour Court and Others

Gurmeet Singh Sandhawalia, J.—This order shall dispose of CWP Nos. 10522 & 10539 of 2014, involving common questions of facts and law. However, to dictate orders, facts have been taken from CWP No. 10522 of 2014 titled Dharminder v. Presiding Officer, Labour Court, Ambala & others. Challenge in the present writ petition is to the award date 24.01.2014 whereby the Labour Court, Ambala has decided the reference against the workman and held that he was not entitled to any relief on the ground that there was no relationship of employer-employee between the petitioner and the respondent-Corporation and the petitioner-workman had only worked with the contractor on 2 years basis.

A perusal of the paperbook would go on to show that in its demand notice filed under Section 2-A of the Industrial Disputes Act, 1947 (for short, the ''Act''), the claim of the workman was that he was appointed on 01.01.2007 as Gateman with the HAFED. His services were terminated on 10.06.2011 even though he had completed 240 days in one calendar year. No retrenchment compensation or one month''s salary was paid nor one month''s notice was given which was a mandatory requirement under the Act. Juniors had been retained in service and fresh appointments had been made even after retrenchment and thus, there was violation of 25-G & 25-H also. It was submitted that the workman was falsely shown working with the contractor only on papers. On the matter being referred to the Labour Court, it was specifically averred that the respondent- Management had given the contract of watch and ward personnel to:

"(i) Perhari Security and Detective Services Ltd. Kapurthala, Punjab,

(ii) Hawks International Security Services Ltd. Chandigarh,

(iii) M/s. Gangotry Security Services Karnal &

(iv) M/s. Narwal Super Security Shop No. 52 Tau Devi Lal Shopping Complex near Railway Road Panipat, since 01.04.2006."

The workman had never been appointed by the respondent, as alleged and therefore, the question of terminating his services did not arise. The plea taken by the workman in his replication was that unfair labour practice had been done by showing the job of the worker through contracts/agencies which is against the statutory provisions.

The Labour Court, on the basis of evidence adduced by the parties which included the statement of the petitioner-workman and WW2, Ramesh Kumar, who had brought the record, came to the conclusion that there was nothing to show that there was relationship of employer-employee and in the absence of the said relationship, it was held that the workman was not entitled for reinstatement.

Counsel for the petitioner has vehemently submitted that the workman had completed 240 days of service and therefore the provisions of the Act stood violated.

After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the present writ petitions. It is settled principle of law that the workman has to prove that there was a relationship of employer-employee inter se the petitioner and the respondent-Corporation. A specific plea was taken from day one that the petitioner was employed by the agencies, as noticed above. The said agencies had not been impleaded as party. It was the case in the notice under Section 2-A also that the petitioner has been falsely shown on the rolls of the security agencies. The workman has, thus, tried to take benefit of the Act that he was an employee of the respondent-Corporation who had engaged services of the workman in pursuance of the outsourcing policy of the Haryana Government, as noticed by the Labour Court. A factual finding has, thus, been recorded and nothing has been pointed out to show that there was any appointment order issued by the respondent-Management directly and that the salaries were being paid by the HAFED directly. In R.M. Yellatti Vs. The Assistant Executive Engineer, the Apex Court held that the onus to prove that there was relationship of employer-employee is upon the workman. Relevant observation read as under:

"15. Analysing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman(claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."

The said view was followed in Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, . Once the petitioner-workman has failed to discharge the onus as per the settled principle of law there can be no interference in the award of the Labour Court. Accordingly, finding no merit in the present writ petitions, the same are dismissed in limine.