TITAN INDUSTRIES LIMITED Vs. KISHAN LAL

JUDGEMENT

(1.) This writ petition is directed against the Award of Presiding Officer, Labour Court No.9, Karkardooma, Delhi dated 17.3.2003. The respondent raised the industrial dispute claiming to be an employee of the petitioner M/s Titan Industries Limited and alleging that his services had been terminated illegally by the Management, namely, the petitioner. The terms of reference were as under:-

(2.) The evidence on behalf of the respondent examined by the Labour Court included the affidavit of the workman respondent Exhibit WW1/A, the complaint filed by the respondent on 10.3.1993 to the Assistant Labour Commissioner, Exhibit WW1/1, the demand notice dated 11.3.1993, Exhibit WW1/2 and the statement of claim filed before the Conciliation Officer, Exhibit WW1/4. On the side of the Management/petitioner, the Labour Court had the affidavit of the Management witness Mrs.Shelly Kaur, Exhibit MW1/A apart from the reply of the Management before the Conciliation Officer, Exhibit MW1/1, the copy of the rejoinder filed by the Management before the Conciliation Officer, Exhibit MW1/2, three vouchers showing reimbursement for the expenses for engagement of a driver, Exhibits MW1/3 to MW1/5. The case of the petitioner before the Labour Court was that the respondent had been engaged by the officer of the petitioner although the said officer, namely Sunil Kumar was reimbursed for the salary paid to the respondent. Before the Conciliation Officer, the petitioner had first asked for the details of the employment so that it could answer if there was any employee working with it under the name of Kishan Lal. Subsequently, on the information being submitted, the Management denied that Kishan Lal was ever employed with the Management. In a rejoinder filed before the Conciliation Officer, it contended that the Regional Manager as a part of perquisites is paid by the Company the allowance for engaging a driver for his use and out of this allowance, the Regional Manager engages a driver for his use and such an employee has no relationship of employer and employee with the petitioner Company. It further contended that the work of the driver was controlled by the Regional Manager himself and the driver was not entitled to any of the privileges or benefits, which the permanent workmen of the Management were entitled to and that such employment would not amount to employment with the petitioner Company. The same stand was reiterated in the written statement to the statement of claim filed by the respondent. The respondent in his own statement of claim contended that he had been working with the petitioner as driver w.e.f. 1.1.1990, that the petitioner had not provided him with the facilities of minimum wages, bonus, ESI facilities, provident fund etc. and that when he demanded those facilities in March, 1993, the Management terminated his services and obtained his blank signatures on some papers. While the respondent reiterated his claim in his affidavit, the respondent witness apart from reiterating the written statement, proved five documents, Exhibits MW1/W1 to MW1/W5, which are vouchers for reimbursement of salary paid by Mr.Sunil Kumar, Regional Manager to the respondent and two documents issued by Prem Nath Motors, being bills for car repair issued to the petitioner Company, which carry the signatures of the respondent. On examining this evidence available with the Labour Court, the Labour Court opined that the case of the Management was "not free from doubt" as at the earlier possible opportunity, the Management had not specifically taken the plea that the respondent was not employed with it. The admission that the car mentioned in the bills of Prem Nath Motors belong to the petitioner Company and that the vouchers, as mentioned above, carried the signatures of the respondent, the Labour Court opined that if the respondent was not in the employment of the Management, he could not have taken the vehicle for service or repair. It also took notice of a note written by Sunil Kumar, Regional Manager, proved as Exhibit MW1/W6 in which Sunil Kumar had made a proposal for "confirming" the respondent. The Labour Court ultimately held as under:-

(3.) It is contended by Shri Sidharth Aggarwal, learned counsel for the petitioner that the Labour Court had made a grave error in placing the onus of proof of relationship on the Management and, therefore, finding of the Labour Court is perverse. Learned counsel for the respondent does not dispute that the onus for proving the relationship of employer and employee between the parties is on the workman, who makes such a claim, but he contends that the onus was discharged by the workman/respondent by production of the note, Exhibit MW1/W6, namely, the note which according to him is admission of the Management about the employment of the respondent with it. It is, therefore, necessary to take a close look at Exhibit MW1/W6, which is as under:- <FRM>JUDGEMENT_1526_ILRDLH15_2006Html1.htm</FRM>