Bansh Bahadur Singh v. Kartar Singh Sira & Sons

ANU MALHOTRA, J.

¶1The petitionerShri Bansh Bahadur Singh s/o Shri Uday Raj Singhvide the WritPetition.(C) No.8570/2007seeksthe settingaside of the award dated 02.02.2007 of the learned Presiding Officer, Labour Court-X, KKD, Delhi in ID No.2319/1995,vide which the reference made by the appropriate Government vide Reference No.F.24(2960)/92-Labdated 15.10.1992 referred to the learned LabourCourt-Xfor adjudicationto the effect: "WhetherShri Bansh BahadurSingh left thejob afterfull and final settlementor his serviceshave been terminatedillegally and/ or unjustifiably by the management and if so what directionsare necessaryin this respect? WP CC] 8570/2007 ^ Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. was answeredto the effectthat the workmani.e. the petitionerherein had never been employed by the managementof M/s Kartar Singh Sira & Sons and that there was no questionof illegalterminationof the servicesof the petitionerand that thus there had been no illegal terminationofthe servicesofthe petitionerhereinby the management, though, it was also held vide the said award to the effect that the management had neither pleaded nor led any evidence that the workmanhad leftthejob afterftill and final settlementas was one part of the referencemade vide the referencehereinaboveas made by the appropriate Government.

¶2The petitionerseeks to contendthathe was an employeeof the respondent who was in the furniture business and that the he had joined the respondent/ M/s Kartar Singh Sira & Sons as a salesman in the year 1986 on a monthlysdary of,Rs'.850/-;that the proprietorof the respondentwas one Shri Bakshish-Singhwho had got an ESI Card issued in favour of the petitioner but that on 07.12.1991, the respondent forcibly obtained the resignation of the petitioner and refused employment to him; that the respondent had made the petitionersign on some blankpapersandvoucherspursuantto whicha legal demand notice dated 18.12.1991was effected by the petitioner throughhis union i.e. RashtriyaGeneralMazdoorUnion and a report dated 23.12.1991 was given by the Labour Inspector to the Rashtriya General Mazdoor Union; that the respondent had reftised to reinstate the petitioner. WP [C] 8570/2007

¶3It has been submittedby the petitionerthroughthe petitionthat it was not recorded in the report of the Labour Inspectorthat the petitionerwas neveran employeeofthe respondentand thatbeforethe ConciliationOfficer, the respondent had taken the stand that the petitionerhad left his job after fiill and final settlement,which had been reflated by the petitionerherein and that a reference was thus made on 15.10.1992by the appropriateGovernment.

¶4The petitionerthroughhis statementof claim dated 14.04.1993 reiterated his contentions of having been forced to resign on

07.12.1991by the respondentqua whichhis signatureshad beentaken allegedlyon a blankpaperandvoucherson 12.12.1991.

¶5The respondent through its written statement denied the existenceofany employer-employeerelationshipbetweenthe parties and deniedthatany LabourInspectoryisitedthe management.

¶6Issueswere framed on,25.09,1998by the learnedLabourCourt to the effect: "ii. Whether there exists no relationship of employer and employeebetweentheparties? a. Whetherthe respondentis notan industry? Hi. Asper terms ofreference. "

¶7The petitioner filed his affidavit for examination-in-chief and was subjected to cross-examinationin which he stated that he was working with the respondent and used' to prepare cabinets for televisions. The petitioner also testified that an ESI Card had been given to him by the respondent. The petitioner through cross-WP (C) 8570/2007 Page3of24 -> examination admitted that after his termination, he worked with another establishment jfrom 1994 to 2001.

¶8Shri Gurdeep Singh was produced as MW-1 on behalf of the respondent/ management and tendered his affidavit as Ex.MWl/A through which he supported the version put forth by the management in the written statement.

¶9The learned Labour Court vide its impugned award dated

02.02.2007 gave its findings on the issues as under: Issue No.l The case of the workman is-that, he was working with the management for the last five years as 'Sales-man' and was drawing salary of Rs. 850/- per month. On the other hand, the case of the management is that the workman was not in the employment ofthe management. The Hon'ble Supreme Court ofIndia in a ease reported as "2004 LLR 351" has held as-underr ! ' S "BURDEN OF PROOF - For existence of relationship of employer and employee - It is well settled principle of law that the person who sets up a plea of its existence - The burden would lie upon him, In view of the above referred judgement, the onus to prove this issue is upon the workman. The workman in order to prove this issue has examined himself as WWl and filed his affidavit. Ex. WWI/A. In his affidavit Ex. WWl/A, the workman has stated that he was working with the managementfor the last five years as Salesman for a monthly salary of Rs. 850/-. The workman has also filed documents Ex. WWI/1 to Ex. WWI/6. Ex. WWl/1 is ESI Card in the name of the workman. Ex. WWl /2 is a letter WP [C] 8570/2007 Page4of24 written by the General Secretary of the Union to the Labour Officer. Ex. WWl/3 is the report of the Labour Inspector. Ex. WWl/4 is the letter written by the workman to the management. Ex. WWl/5 is the postal receipt and Ex. WWl/6 is the acknowledgement card. The Hon'ble Madhya Pradesh High Court (Indore Bench) in a judgment reported as "2001 (88) FLR 230" has held as under : "To prove a contract of employment, there has to be a direct evidence to show some nexus between the claimant and the respondent. This can be ofany kind such appointment letter, monthly payment slip, deduction of PF, payment of any dues which would show that he was in the employment^ any correspondence wherein the respondent; Has admitted that claimant was in his employment In substance, the courts are in favour of documentary evidence to record a definite finding on such type ofissue. They are,the best piece ofevidence for coming to a conclusion one way or other." The Hon'ble DelhiJHighs^^ in a judgment reportedas "130(2006)DLT166"has heldasunder: "Labour Law - Engagement and appointment in. service can be established directed by existence and production of appointment letter, written agreement or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave records, deposit ofPF contribution, ESI, etc." As discussed above, in this case, the workman has filed six documents. Out of these, only 2 documents i.e. report oftheLabourInspectorwhich isEx. WWl/3and the ESI card which is Ex. WWl/1 are the documents which can WP [C] 8570/2007 Page 5 of24 show that the workman was in the employment of the management. As regards the report Ex. WWl/3 of the Labour Inspector is concerned, I am of the view that the same has not been proved in accordance with law because the workman has not examined the Labour Inspector. Therefore, the said report cannot be considered. As regards the ESI card Ex. WW 1/1 is concerned, it is important to note that the name of the employer is not mentioned on the same. The management has denied that the ESI card pertains to it. The workman has not examined the ESI official in order to show that the ESI card pertains to the answering management. Therefore, under these circumstances, I am of the vie^v that the ESI card Ex. WWI/1 does not show that the workman was in the employment ofthe management Apart from the documents \ mentioned above the workman has not filed any other document to show that he was in the employment of,the management. In vie^v of the judgments "2001 (88) FIR 230" and ''130 (2006) DLT 160" (Supra). I am of the view^ thCit the workman has not filed any such document which could show that the workman was in the employmentybf the management. As regards the affidavit ofthe:w:oxhndnas concerned. 1 am of the view that the same cannot b^ relied upon because in his affidavit Ex. WWl/A, the workman has stated that he was unemployed since 07.12.1991. But., in his cross examination, he has submitted thgt^ he joined M/s Sahni Rubber in the year 1994 and he was removed from M/s Sahni Rubber in the year 2001. Therefore, it is clear that the workman has mentionedfalse facts in his affidavit, and therefore, it. is not safe to rely upon his affidavit. In viewofthe above discussion, I am ofthe view that the workman hasfailed toprove that he was employedwith the management. Accordingly, this issue is decided in favour of the management and against the workman. Issue No. 2: WP [C] 8570/2007 \ . > The onus to prove this issue is upon the management. The management has examined one Sh. GurdeepSingh as MW 1 who has filed his affidavit.Ex. MWl/A. Theperusal ofhis affidavitEx. MWl/Ashows that he has not mentionedin his affidavitthat the management was not an industry. Therefore, under these circumstances,I am of the view that the managementhasfailed toprove that it is not an industry. Issue is decided accordingly, against the management and infavour ofthe workman. Issue No. 3: The first part of the reference is that whether the claimanthas left thejob afterfull andfinal settlement.In this regard, the managementhas notpleadedthisfact and did not lead any evidencethat the workman has left the Job afterfull andfinal settlement. The other part of the.reference is that whether the services of the workman were, terminated by the managementillegally.In.order toprove this, the workman has filed his affidavit Ex. WWl/A wherein, he has stated that his services were terminated by the management illegally. The case of the managementis_ that the workman was never in the employmentof the management.In issue No. 1 above, it has been held that the workman was never employedby the management. Therefore, no question of illegal termination of his services by the management arises. In view of the above, in my view the workman has failed to prove that his serviceswere illegallyterminated by the management. In view of thefindings on the issuesabove, 1 am of the consideredview that the workman hasfailed to prove WP [C] 8570/2007 Page 7 of24 that he was employed by the management, and his services were illegally terminated by the management. Reference is answered accordingly and the Award is passed. "

¶10The records of the learned Labour Court were requisitioned and have been perused. The records of the learned Labour Court bring forth clearlythat Ex.WWl/1 placedon record by the petitioneris the ESIC identitycard issuedin favourof the petitionerbearingInsurance No.11-3888920with the EmployersCode No.11-8057. The petitioner through his affidavitdated 26.03.1999Ex.WWl/A thus assertedthat this document Ex.WWl/1 proves the relationshipof employer and employeebetweenhim and the management.In his cross-examination recorded on 06.12.2001 by the learned Labour Court, the petitioner denied that he was not working as a salesman and stated that he used to be sent along with the tempo in which the goods of the managementwere carried, He furtherstatedthat he used to prepare cabinets of TV, columns ani wooden speakers prepared by the management.He stated that there was no GPF deductionand that he was not issued any appointment letter and that the management also got the work ofpolishingdone from him and the completeset of cabinetof TV was preparedby the managementand at the time of deliveryof the cabinetto the buyer, he, WW-1/ the petitionerused to take the challanfrom thepurchaserand used to submitthe copy ofthe same to the management.He furtherstatedthat he neverobtainedany order from the purchaserand most of the time, he worked with the WP (C) 8570/2007 ^ ^4 V managementas a helper on the tempo and sometimes,he was also made to polish the cabinet.

¶11The respondentexaminedShri GurdeepSingh,MW-1, s/o Shri Bakshish Singh s/o Sardar Kartar Singh, proprietorof M/s Kartar SinghSira&Sons,the respondentas the PowerofAttorneyHolderof Shri BakshishSingh,whichwas placedon recordas Ex.MWl/1.This witness through his depositionEx.MWl/Astated that the petitioner was never an employee with the management and that the . management was run on a very small level and there was no departmentcalled the Sales Departmentand that the petitionerwas never employedwith the management:,MW1/1 furtherstatedthat all the statutory benefits like EPF, ESIC have been provided to the employeesof the management/respondentand deposed on oath that the ESIC Code of the respondent is 11-12109-66 with the EPF I . I I ' ' v' Code being DL/9282 and produced Ex.MWl/1 and Ex.MWl/3 in support of the same. •7 ^

¶12The managementdenied"thkt itted obtainedany signaturesof the petitionerhereinon the blankpapers. The respondentalso denied the receiptof any demandnoticefrom the petitionerand reiteratedthat there was no employer and employee relationship between the claimantand the managementand that there was no questionof any relief being granted to the claimant much less any continuity of service and back wages.

13.. Through his cross-examination conducted on 01.08.2006, MW-1 stated that Shri Jasbir Singh Sira is his brother and stated that he was doinga separatebusinessunderthe name and styleofM/s J.S. WP eg 8570/2007 Page9 of24 Enterprises and that he did not know whether till the date of his testimonyi.e. 01.08.2006,Shri JS Sira was doing his business in the name and style of M/s J.S. Enterprises.MW-1 denied the suggestion raised on behalf of the petitionerthat the claimantwas workingwith the managementand statedthat the respondenthad not appearedin the conciliation proceedings and could not answer whether the management had produced any document in the conciliation proceedings. The respondent also denied the receipt of any document during the course of the conciliation proceedings and denied that the management had stated in the conciliation proceedings that the claimant had left the job after receiving his full and final payment and stated that there was no question of payment to the petitioner who was working on duty on a trial basis,and that,he had been paid travelling expenses.

¶14This witness MW-1 ftirther stated' that the petitioner had deposed in relation to the; demand nqtiee which, however, was not received by the respondent. This-witness categorically denied that the, petitioner had worked with the management for five years prior to his testimony continuously as a salesman for a monthly salary of Rs.850/- p.m. and also denied that when the petitioner demanded year leave etc. he was terminated on 07.12.1991 after taking his signatures forcibly on the resignation on fiill and final payment.

¶15The records of the learned Labour Court indicate that the application filed by the petitioner under Section 18(3) (b) of the Industrial Disputes Act, 1947 for impleading M/s J.S. Enterprises, submitting to the effect that he, the petitioner had no knowledge that WP [C) 8570/2007 the managementhad issuedthe ESI CardofM/s J.S. Enterpriseswhen he, the petitionerwas doing the work of M/s Kartar Singh Sira & Sons,- was declined vide order dated 01.03.2004 by the learned Presiding Officer, Labour Court-X observing to the effect that accordingto the workmanhe was workingonly with managementof M/s KartarSingh Sira& Sons and thathe had not claimedthathe had worked with M/s J.S. Enterprisesand that thus the learned Labour Court-Xobservedto the effectthat it had not found any merit in the submissionsmade by the learned AR for the workman observingto the effect that the reference made by the appropriate Government referred to hereinaboveclearly showed that the Court had to decide whether Shri Bansh Bahadur had left the job after ftill and final settlement from M/s Kartar Singh Sira & Sons whose name was mentioned in the reference or whether his services were terminated illegallyand unjustifiablyby the managementand the learnedLabour Court observed to the effect that .it^ cannot exceed the terms of reference and thus the learned Labour Court could not go into the questionof whetherthe workmanwas in the employmentof M/s J.S. Enterprisesornot and that thus the applicationseekingsummoningof M/s J.S. Enterprises was dismissed.

¶16Qua issue no.l which relatedto the aspect as to whetherthere exist any relationshipof the employer and employee between the parties,the learnedLabourCourtplacingrelianceon the verdictof the Hon'ble Supreme Court reported in 2004 LLR 351 observed to the effect that to prove the issue, the petitionerhad examinedhimselfas WWl and had inter alia stated that he had worked with the WP (C) 8570/2007 Page11 of24 managementfor the last five years as a salesmanfor a monthlysalary of Rs.850/- and filed the documents Ex.WWl/1/ to Ex.WWl/6 and that Ex.WWl/1 was an ESI Card in the name of the workman, Ex.WWl/2 was a letter written by the General Secretaryof the Union to the Labour Officer, Ex.WWl/3 was a report of the Labour Inspector, Ex.WWl/4 was a letter written by the workman to the management, Ex.WWl/5 was a postal receipt thereof and Ex.WWl/6 was acknowledgement card. The learned Labour Court held that out of these six documentsonly report of the Labour Inspector Ex.WWl/3 and ESI Card, Ex.WWl/1 were the documents which could show that the workman was in the employment of the management and that as per the report of the Labour Inspector, the respondent/ employerhad refused to reinstate the petitioner on work and it was held by the learned Labour Court that the said docurnenthad not been proved in accordance with law because the workman had not examined the Labour Inspector and that thus the^saiidlreportcannot be considered and as regardst|a^Ex.WWl/r,the-ES'I;iCard,it was observedby the learned Labour Court that the name of the employer was not mentioned and that the management had/denied that the ESI Card pertained to it and that the workman had not examined the ESI Official to show that the ESI Card pertained to the answering management. It was held by the learned Labour Court that Ex.WWl/1 did not show that the workman was in the employment of the management and that apart from these two documents i.e. Ex.WWl/1 and Ex.WWl/3, there was nothing to show that the petitioner was in the employment of the management. WP [C] 8570/2007

¶17The averments made by the petitioner through his affidavit were not relied upon by the learned Labour Court in view of the statement made by the petitioner that he was not employed since 07.12.1991 whereas in his cross-examination, he stated that he had joined M/s SahniRubber in the year 1994 and was removedfrom the same in the year 2001 and that thus, the learned Labour Court observed to the effect that the workman had mentioned false facts in his affidavit and it was not safe to rely upon his affidavit.

¶18It is the avowed contention raised on behalf of the petitioner through the present petition that the strict and technical rules of evidence do not govern the proceedings before the Industrial Adjudicatorsas laid down by the Hon'ble Supreme Court in Anglo-American Direct Tea Trading Co. Lid. V. Their Workmen & Another AIR 1963 SC 874 and, reliance was placed on the observations therein to the effect: ; • "They can compelwitnessesto appear, they can administer oath, they are required -to.^^ certain rules of procedures; the proceedingsbefore them are required to complywith rules ofnaturaljustice, they may not be bound by the strict and technical rules of evidence, but, nevertheless,they must decide on .evidenceadducedbefore them; they may not be boundby othertechnicalrules oflaw, but their decisions must, nevertheless, be consistent with the general principles oflaw. "

¶19It was also submitted on behalf of the petitioner placing reliance on the observations in the verdict of the Hon'ble Supreme Court in Grindlays Bank Ltd. V. The Central Government Industrial WP [C] 8570/2007 Page13 of24 Tribunal <&. Ors. AIR 1981 SC 606 wherein it was observed to the effect: "Theobject of giving such wide powers is to mitigate the rigour of the technicalitiesof the law,for achievingthe object effectiveinvestigationand settlementof industrialdisputes, and thus assuring industrial peace and harmony. The discretion thus conferred on these authorities to determine the procedure as they may thinkfit, however, is subject to the rules made by the 'appropriate Government'in this behalf Part III of the Industrial Disputes (Central) Rules, 1957 makes rules in this behalf Rules 9 to 30 are the relevant rules regulating procedure. State Governments too have made their own corresponding rules. Except to the extent specified in sub-s.(3) ofs. 11 of the Act and the rulesframed thereunder, the provisions of the Code of Civil.Procedure, 1908 are not applicable to proceedings before the authorities mentioned in sub-s.(l). Theprovisions ofthe Evidence Act, in their strict sense, likewise do not apply to proceedings before the authorities. Nevertheless,,all these authorities being quasi-judicial in nature objectively,determining matters referred to them, have to exercise theii: di:screti6nin a judicial manner, without caprice, and dccoMingito Hhe'.generalprinciples of law and rules ofnatural justic^i":-'-- to contend to similar effect that the provisions of the Indian Evidence Act, 1872 in the strict sense;,do not apply to the proceedings before the Labour authorities. Undoubtedly, the said contention raised on behalf of the petitioner cannot be faulted with. However, it cannot be overlooked that the categorical assertions of the respondent in the instant case were to the effect that the ESI Card issued to the petitioner did not relate to the respondent. WP [C) 8570/2007

¶20The records of the learned Labour Court as observed vide proceedingsdated 15.01.2004indicate that during the course of proceedingsit hadbeenpointedoutthattheESI Numberproduced by the workmanwas not the ESI Numberof the managementand that the petitionerhad statedthat the son of KartarSingh i.e. Shri Jasbeer Singh who was present in the Labour Court was also runningthe businessin the name of M/s J.S. Enterprisesand Shri Jasbeer Singh was asked by the learned Labour Court to tell the ESI Number, which he did not remember and was thus directed to file the affidaviteitherby himselfor throughShri Gurdeep Singh mentioning the ESI Number of M/s J.S. Enterprises, which affidavit was so filed dated 17.02.2004 of Shri Gurdeep Singh who stated that the ESI Number 11-8057 as quoted by the workman was the ESI Number of M/s J.S. Enterprises a proprietorship firm at 102, Kan^ti Nagaf, Pelhi-51, which was lying closed since 2001 and thiat th^ proprietor of the said firm was Shri JS Singh and that the respondent/ management.was the separate entity and had no financial and administrative integrity between them and ownership of both were separate with separate addresses and location and shared no relations between the parties and that both the firms had separate books of accounts and different style of workings

¶21Significantly, as already observed elsewhere hereinabove, the application filed by the petitioner herein to implead M/s JS Enterprises was declined on 01.03.2004 it having been observed that the terms of reference could not be exceeded. The petitioner WP Cq 8570/2007 has not assailed this order dated 01.03.2004 of the learned Labour Court at any stage.

¶22Apparently, the circumstanceof the petitionerseeking to implead M/s J.S. Enterprises through whom the ESIC Card was issued to the petitioner as a party to the reference is a circumstance,which cannot be overlooked.As already observed hereinabove, the order dated 01.03.2004 of the learned Labour Court-Xdecliningthe prayerto impleadM/s J.S. Enterprisesas a party to the reference was correctly declined and has not been assailed. As already observed vide the said order dated 01.03.2004 of the learned Labour Court-X, the ambit of the reference cannot be extendedto includewhose who were not a partyto the original reference made, which was in relation to the aspect of the petitioner having left the job after ftill and final settlement and his serviceshaving been terminatedillegallyand unjustifiablyby the management of M/s Kartar Singh Sira & Sons.

¶23As observed by the learned Labour Court-X vide the impugned award that no documentaryevidence had been led by the petitioner to bring forth that he was in fact employed as a workman of the respondent in as much as Ex.WWl/1, the ESIC Card does not relate to the respondent.

¶24Through the cross examination of the petitioner dated

06.12.2001, the petitioner stated that there was no contribution to the GPF deducted and that he was not issued any appointment letter and that he used to work as a salesman with the respondent and that the management also got the work of polishing done from WP(C] 8570/2007 D , him and that the completeset ofcabinetsofTVs were preparedby him and that most ofthe time, he workedwith the managementas a helper on the tempo and sometimes,he was made to polishthe cabinet.The said crossexaminationofthe petitionerdoes not bring forth a relationshipof an employer and employee between the partiesinas much as thereare discrepanciesinthe testimonyofthe petitioner himself as to the nature of duties and engagement between him and the respondent. The specific date of stated employmentof thepetitionerwiththerespondenthas also not been put forth by the petitioner.

¶25The contentionraised by the petitionerherein is to the effect that there is a Labour Inspector's report dated 23.12.1991 i.e. Ex.WWl/3 to the effect that the managementof the respondent had refused to take the petitioner herein into the services and the same without the Labour Inspector having been produced in the witness box being taken into account in as rnuch as the strict rules of evidencedo not applyin industrialadjudicationin as much as in terms of Section 11(1) of the Industrial Disputes Act, 1947. Undoubtedly, though, the learned Labour Court may follow such procedure as it may think fit and thus, though in terms of Section 11(3) of the said enactment, the learned Labour Court is vested with the powers of a Civil Court under the Code of Civil Procedure, 1908 as when trying a suit in relation to the aspect of enforcing the attendance of any person and examining on oath, compelling the production of documents and material objects, issuing commission for examination of witness and in respect of WP (C) 8570/2007 such methodsas may be prescribed,the same, however,as rightly contended on behalf of the petitioner, would not make the strict rules of evidence applicable to the Labour Court proceedings. However, the said factum,Ex.WWl/3 which incorporatesa refusal of the respondent/managementto employthe petitioner, is not an indicator and cannot be read to the effect that the respondent by such refusal to employ the petitioner had admitted the existence of an employer-employee relationship between itself and the petitioner.

¶26It is undoubtedly true that the records of the learned Labour Court indicate that placed thereon at Mark-A is the copy of the reply on behalf of the management to the statement of claim of the workmen before the Conciliation Officer, Zonal Officer, Karampura, Delhi. As per which, it had been mentioned in para-1 thereof to the effect: "That para 1 of the statement of: claim is wrong incorrect and hence denied.lt is. wrong to say that the workman was working with the management for the last five years. As per the record of the management the workman joined the management w.e.f. 04.11.1991 as a helper with monthly salary ofRs:850/- p.m. and he has received his full and final dues of Rs.ll04/- upto

07.12.1991 and left thejob ofhis own. " It cannot however be overlooked that even in the said reply, the respondent had contended that all the claims of the petitioner stood satisfied and that he has received his full dues of Rs.ll04/- upto

07.12.1991 and that the petitioner had left the job of his own. WP (C] 8570/2007

¶27In the circumstancesofthe case wherethe petitioneradmittedly made a variant statement in relation to his contentionthat he had remained unemployedfrom 07.12.1991 till submissionof his claim before the learned Labour Court-X but admitted during cross examinationthat he had been employed in the year 1994 and was removedfrom the servicesof M/s Sahni Rubberinthe year 2001, the observationsof the learnedLabourCourtto the effectthat it was not safeto rely uponthe affidavitofthe petitionerandthathe had failedto provethat he was employedwith the managementof the respondent, cannot be faulted with.

¶28Even otherwise,the presentpetitionis oneunderArticles226 & 227 of the ConstitutionAs laid down by the Hon'bleSupremeCourt in "SyedYakoobVs. K.S. Radhakrishnanand Ors." AIR 1964 SC 477, thoughawrit of certiorarican be issuedfor correctingerrors of jurisdictioncommittedby inferiorcourtsor Tribunals,these are cases where orders are passed by inferior ;Courts or tribunals without jurisdiction,or in excess of it, or as a result of failure to exercise jurisdictions,a writ can similarly be issued where in exercise of jurisdictionconferred on it, the Court or Tribunal acts illegally or improperly,as for instance, it decides questionswithout giving an opportunityto be heardto the partyaffectedby the order,or wherethe procedureadoptedin dealingwiththe disputeis opposedto principles of natural justice. However, as observed by the Hon'ble Supreme Court in the said verdict vide para 7 thereof, though, a writ of certiorariis asupervisoryjurisdictionand the Courtexercisingit is not entitled to act as an appellateCourt and this limitationnecessarily WP [C) 8570/2007 ^ meansthatfindingsoffact reachedby the inferiorCourtorTribunalas a result of the appreciation of evidence cannot be reopened or questionedin writ proceedingsand an erroroflaw which is apparent on the face ofthe recordcan be correctedby a writ, butnot an errorof fact, howevergraveit may appearto be and thatin regardto afinding offact recordedby the Tribunal,a writ ofcertiorarican be issuedif it is shown that in recording the said finding, the Tribunal had erroneouslyrefusedto admitadmissibleand materialevidence,or had erroneouslyadmittedinadmissibleevidencewhich has influencedthe impugned finding and similarly,if a finding of fact is based on no evidence, that would be regarded,as an;error of law which can be correctedby a writ ofcertiorariand that'aCourtmust alwaysbear in mind that a finding of fact recorded by the Tribunal cannot be challengedin proceedingsby awritofcertiorarion the groundthatthe relevant and material evidence'.^adduced;before the Tribunal was insufficientor inadequateito sustain the-impugnedfinding and the adequacyor sufficiencyofevidf^ncel^:orra pointand the inferences of fact to be drawn from the said finding are within the exclusive < jurisdictionof the Tribunal, and,the saidipbints cannot be agitated beforeawritcourtand thatitis withintheselimitsthatthejurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorarican be legitimatelyexercised,

¶29Itwas furtherobservedby the Hon'bleSupremeCourtvidepara 8 of the said verdict, which reads to the effect:- "8. It is, of course, not easy to define or adequatelydescribewhatan error oflaw apparent WP CO 8570/2007 Page20of24 on the face of the record means. What can be correctedby a writ has to be an error of law; but itmustbe such an erroroflawascan be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusionof law recordedby an inferior Court or Tribunal is based on an obvious mis interpretationof the relevantstatutoryprovision, or sometimesin ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevantstatutoryprovisionthat no difficulty is experiencedby theHigh Courtin holdingthat thesaiderroroflaw isapparenton theface ofthe record. It may also be that in some cases, the impugned error of law may not be obvious or patent on theface of the record jas such and the Court may need an argument to 'discoverthe said error; but there can be no doiibt that what can be correctedby a writofcerkordrvis.an erroroflaw and the said error must, be ofsuch a characteras wouldsttii^ili^mtthat it is an error oflaw apparenton theface ofthe record.If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court br Tribunal, its conclusionmay not necessarilyor alwaysbe open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describeadequately all cases of errors which can be appropriately describedas errors oflaw apparenton theface of the record. Whetheror not an impugned error is an error of law and an error of law which is apparent on the face of the-record, must always WP CO 8570/2007 Page21of24 depend upon thefacts and circumstancesof each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."

¶30The verdict of this Court in "ParshuramShah Vs. Govt. of NCT ofDelhi and Anr" (supra) also likewise observes to the effect:- "7. The arguments advanced on behalf of the petitioner workman, if entertained, would amount to interfering with thefindings offacts as arrived at by the Labour Court after due appreciation of evidence. Law is well settled in this respect that the Labour Court is thefinal court offacts and it is not appropriatefor this Court, whileexercising jurisdiction under Article 226 of the Constitution, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. Thejurisdiction (^ercised by the writ court under Article 226 is supervisory dnd not appellate in nature. Reappraisal of{ evidence without sufficient reason in law^ to arrive at a finding of fact contrary to\l those rtirrtyedf at by the Subordinate Court, is.not of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments ofthe Supreme Court:

(i)Harbans Lai v. Jagmohdn Saran

(ii) B.C. Chaturvedi v. Union ofIndia

(Hi) Indian Overseas Bank v. I.O.B. Staff Canteen Workers? Union AIR 2000 SC 1508

(iv) P.G.I, of Medical Education and Research Chandigarh v. Rajkumar (2001) 2 see 54. WP eg 8570/2007 V

(v) Municipal CorporationofDelhi v. Asha Ram andAnr." and thus, in that case where it was observedthat thatfindingsofthe LabourCourtwere basedon an appreciationofthe materialplacedon the record which findings were neither perverse nor arbitrary nor capricious,itwas heldthat,it didnot warrantany interference.

¶31In the facts and circumstancesof the instantcase, thus it is not considered appropriate to interfere in the findings of the learned LabourCourt qua issue No.1 where by the learnedLabourCourthas observedto the effectthat the petitionerhad failed to prove that he was employedwith the management'and that issue no.2 has rightly been decidedagainstthe management:and in favour of the workman. In the circumstances,thusj in view of the findings in relationto the issue no.l having been upheld,:the findings in relationto the issue no.3 of the learnedLabourCourtCannpK^^^^ with in viewof the factum that the relationship,of^mployferiaridemployeebetweenthe petitioner and the respondent has hotbeen established.

¶32The petition is thus dismissed. However, in view of the ESIC Card issued to the petitioher^vith the Eihp^ Code being 11-8057, as indicated vide Ex.WWl/1, it is open to the petitioner to seek redressal in accordance with law against the employer with the said employee code.

¶33It is essential,however,to observethat throughthe replyto the writpetition,it had been submittedbythe respondentthat appropriate orders be passed on the application under Section 340 of the Cr.P.C. dated 18.08.2006that had been filed by the respondentagainst the WP eg 8570/2007 Page23 of 24 petitioner for the offence of forgery on the basis of facts and documents placed on the record as the same was kept pending for decisionby the learnedLabourCourt.A bare perusalofthe recordsof the learned Labour Court indicate that vide order dated 02.02.2007 it had been observedby the learned Labour Court qua the application under Section 340 Cr.P.C. to the effect: "As regards the applicationof the managementU/s 340 Cr. P.C. is concerned, I am of the opinion that it is not in the interestofjustice to make enquiryinto the said application. Accordingly,the application isfiled. "

¶34The prayer thus made by the respondent/management submittingto the effectthat thesaid applicationunderSection340 Cr.P.C. dated 18.08.2006is pending considerationis devoid of all merits and the prayer made in relation thereto is declined. Furthermore,as rightlyobservedby the learnedLabourCourt-X,it is not in the interest of justice to make an enquiry into the said applicationand the said applicationhas.rightlythus been directedto be fded by the learned Labour Court-X in the circumstancesof the case speciallywhere the contentionsofthe petitionerare to the effect that he was issuedan ESIC Card by the respondentwhich ESIC Card howeverbearsthe employersCode ofM/s J.S. Enterprisesand not that of the respondent. MAY 9'^ 2019/vm ? -jr ANU MALHOTRA,J.' ^ WP [C] 8570/2007 Page24 of24

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) 8570/2007 Judgment reserved on ; 24.08.2017 Date of decision : 09.05.2019 SHRIBANSHBAHADURSINGH Petitioner Through: Mr. SanjoyGhose,Ms. Urvi Mohan, Mr. Rhishabh Jetley, Advocates. versus M/S KARTARSINGHSIRA& SONS Respondents Through: Mr. VikasNagpal,Advocate. CORAM: HON'BLE MS. JUSTICE ANU MALHOTRA .lUDGMENT