Sunday 3 May 2015

Whether burden of proof is on employee to prove existence of relationship of employer and employee?



“It is a well settled principle of law that the person who
sets up a plea of existence of relationship of employer
employee, the burden would be upon him”.1
In the same decision, however, the Supreme Court went on to
observe that the question of existence of 'employer-employee
relationship' is a pure question of fact and ordinarily the High Court
while exercising its power of judicial review, ought not to interfere,
unless the finding is 'manifestly or obviously erroneous or perverse'.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

Tribhuvandas Dhoria

versus

Tekchand Khanchandani

WRIT PETITION NO. 930/2008

CORAM : M. S. SONAK, J.

Judgment pronounced on : 22 August 2014.
Citation;2015(2) ALLMR715


The employer-Tekchand questions the Labour Court award
dated 8 June 2006 ('impugned award') which holds that termination
of the workman-Tribhuvandas' service with effect from 7 October
1993 is illegal and directs his reinstatement with full back-wages
and continuity of service.

Tribhuvandas claims that he was employed as a Tailor with
2]
M/s. Vikas Garments, M/s. Vikas Fashions and M/s. Prakash
Garments, proprietary concerns of Tekchand, which were engaged
in manufacturer of readymade garments. On 7 October 1993, when
Tribhuvandas reported for work, he was physically prevented from
even entering into the work premises and told by Tekchand that his
employment 'stands terminated'. By this date, Tribhuvandas had
completed over three years employment with Tekchand. Around the
same time, Tekchand, in a similar fashion 'orally terminated'

services of almost 19 workers, 11 of whom are respondents in the
connected writ petitions. Tekchand, on his part, has completely
denied ever having employed Tribhuvandas, or for that matter 11
other workmen in his factory. Tekchand says that there is no
'employer-employee relationship' and therefore, he is not at all
concerned with the workers in these batch of petitions.
3]
By letter dated 1 November 1993, Tribhuvadas protested
against
the
treatment
meted
out
to
him
and
demanded
reinstatement. As there was no response, by the justification
statement dated 8 November 1993, Tribhuvandas raised an
industrial dispute. The machinery of conciliation was set into motion.
Tekchand claims to have sent some reply, but participated no
further. Upon conciliation proceedings ending in failure, the
appropriate Government, in exercise of powers under Section 10
read with Section 2(A) of the Industrial Disputes Act, 1947 (“said
Act”) made a reference to the Labour Court, resulting in the
impugned award.

Mr. Mahendra Agvekar and Mr. Rajesh Gehani, learned
4]
on the following grounds:
(A)
counsels for the employer-Tekchand attacked the impugned award
That the Labour Court incorrectly placed the
burden of proving 'employer-employee relationship'
(B)
upon employer-Tekchand ;
There is no evidence whatsoever on record to

establish that Tribhuvandas was indeed an employee of
Tekchand. The finding to the contrary, is vitiated by
'perversity';
The Labour Court has made reference to
(C)
documents/material which were not a part of the record.
There is, accordingly, clear non-application of mind
which vitiates the impugned award;
(D)
Without prejudice, there is no material on record
that Tribhuvandas had put in 240 days service in the
year preceding the alleged date of termination. The
burden of establishing this fact was solely upon
Tribhuvandas, who has miserably failed to discharge the
same. In absence of any proof as to such jurisdictional
fact, the Labour Court erred in invoking the provisions of
Section 25-F of the said Act.

5]
Mr. Mandavia, learned counsel for the Tribhuvandas, at the
outset, submitted that Tekchand has been far from candid with the
Court and therefore ought to be dis-entitled to invoke the extra
ordinary and equitable jurisdiction of this Court under Article 226 of
the Constitution of India. In any case, the counsel submitted that the
Labour Court has recorded findings of fact which derive support
from the material on record. There is neither any perversity nor non-
application of mind, in the matter of record of such findings of fact.
6]

case to warrant judicial review.
Accordingly, the counsel urged, that Tekchand had made out no
The counsels did make attempt to argue on the aspect of
compliance or otherwise of the interim orders made by this Court in
these batch of petitions in the context of motion under Section 17B
of the said Act. The counsels for Tekchand complained that despite
offer of work, the workmen refused to report for duties. Likewise,
counsel for workmen complained that despite the workmen
reporting for duties, Tekchand offered them no work. These are
seriously disputed questions of fact. Counsel for the workmen,
however, submitted that the appropriate proceedings have been
taken out before a Forum, where such disputed questions could be
effectively gone into. In view of such position, this Court declines to
go into the such issue. However, adjudication upon such issue
before the appropriate Forum, is expressly kept open.
7]
Counsels for Tekchand are right in their contentions that
burden of proving existence of
'employer-employee relationship'
was upon the workman-Tribhuvandas, who had asserted the same.

The Supreme Court, whilst approving the decisions of Kerala and
Calcutta High Court as held:
8]
“It is a well settled principle of law that the person who
sets up a plea of existence of relationship of employer
employee, the burden would be upon him”.1
In the same decision, however, the Supreme Court went on to
observe that the question of existence of 'employer-employee
relationship' is a pure question of fact and ordinarily the High Court
while exercising its power of judicial review, ought not to interfere,
unless the finding is 'manifestly or obviously erroneous or perverse'.

To the same effect is the ruling of the Division Bench of Calcutta
9]
High Court2.
Yet in two other cases3, the Supreme Court whilst reiterating
the position regards burden of proof, however, observed that degree
of proof so required would vary from case to case and it was neither
feasible nor advisable to lay down any abstract rule to determine
the existence of such relationship. It was essentially a question of
fact to be determined by having regard to the cumulative effect of
the entire material placed before the adjudicatory forum by the
parties. In the first case, the workman had produced three vouchers
evidencing payment of certain sums of money by the employer-
bank. The bank, apart from the contention in its written statement
denying any relationship, failed to produce any evidence to rebut
'even the piece of evidence produced by the workman'. In such
1 Workmen of Nilgiri Coop. Mkt. Soc. Ltd. vs. State of T.N. & ors. - (2004) 3 SCC 514, N.C. John v.
Secy. Thodupuzha Taluk Shop & Commercial Establishment Workers' Union – 1973 Lab IC 398 (Ker)
and Swapan Das Gupta v. First Labour Court of W.B. - 1976 Lab IC 202 (Cal)
2 M/s. Reckitt & Colman of India Ltd. vs. Fifth Industrial Tribunal & ors -1980 Lab I.C. 92
3 Bank of Baroda vs. Ghemarbhai H. Rabari – (2005) 10 SCC 792 and Kanpur Electricity Supply
Company Limited vs Shamim Mirza – (2009) 1 SCC 20

circumstances, the burden was held to be discharged by workman.
appointment
or
their
salary
slips,
but
produced
In the second case, the workmen did not produce letters of
some
contemporaneous documentary evidence like ECR sheets bearing
the signatures of the workmen and senior officer of the company,
from which it could be deduced that the workmen were engaged in
collecting cash on behalf of the company. The company failed to
lead evidence in rebuttal and when called upon to produce official
records, failed to do so. The adverse inference was drawn against
the company and the burden was held to have been validly
Therefore, applying the aforesaid tests and being conscious
10]

discharged by the workmen.
of the clear and marked difference between exercise of judicial
review and the exercise of appellate jurisdiction, the merits of the
first ground urged on behalf of Tekchand shall have to be examined.
11]
In the present case, Tribhuvandas examined himself and was
cross-examined by Tekchand, who piloted the proceedings before
the Labour Court 'in person'. Tekchand, also stepped into witness
box and was cross-examined by the counsel for Tribhuvandas and
other workmen.
12]
Tribhuvandas,
in
his
examination-in-chief,
has
clearly
deposed that he was employed by Tekchand as a Tailor and had put
in service of about three years, when he was unceremoniously
terminated on 7 October 1993. On this date, Tribhuvandas says that
he was prevented
from entering into factory premises and

threatened with dire consequences, in case, he persisted in his
attempts to do so. There was neither notice nor notice pay issued or
offered. There was not even the minimum compliance with
principles of natural justice and fair play. In the cross-examination,
Tekchand has not even put forth the customary suggestion to
Tribhuvandas that he was never employed with M/s. Vikas
Garments. In response to Tekchand's cross-examination, however,
Tribhuvandas deposed that there were about 70 to 75 employees
working in the factory, out of which about 19 'karagirs', including
himself were unceremoniously removed. Tribhuvandas admitted

that there was no appointment letter issued to him, but stated that
he was provided with a diary, which would be written upon by the
Master. Tribhuvandas deposed that he was paid wages of Rs.1700/-
per month, but no other statutory benefits like Provident Fund or
Employees State Insurance were offered to him.
13]
The employer Tekchand in his examination-in-chief, which is
'common' to these batch of petitions, merely stated this much:
“The workers who have filed the cases in this court
they have not worked with me. I relied on my written
statement which I have filed even today. (The witness
said that it is enough and he does not want to say
anything more).”
14]
In his cross-examination, Tekchand admitted to being
the
proprietor of M/s.Vikas Garment, however, with regard to other two
concerns, Tekchand refused to make any comment. Tekchand
stated that his factory commenced operating in the year 1984, but
claimed that he had no knowledge whether he had obtained any

license from the statutory authorities for the same. Tekchand
claimed to have employed hardly two to three persons in the factory,
but declined to answer the question as to the manner in which the
said employees were paid their wages upon the spacious plea that
such questions constitute 'waste of Court's time'.
Upon being
required by the Court to answer, Tekchand stated that he would pay
the wages against 'vouchers'. Surprisingly, Tekchand was unable to
even state the names of his two to three admitted employees. Upon
being confronted with an attendance card, Tekchand stated that he
was not in a position to identify or name the person whose

signature it bears. Upon being confronted with an inland letter
bearing the address of M/s. Vikas Garments, which was received by
the workman at the factory address, Tekchand simply denied that
such letter may have been received by the workman at the factory
address. Upon being confronted with two newspapers cuttings of 3 rd
and 4th November 2011, being advertisements issued by him for
appointment of Tailors, Tekchand denied having issued the same,
however, not without indulging into shouting and thereby forcing the
Labour Court to temporarily suspend the evidence proceedings.
Tekchand also deposed that he had closed down the factory 'since
last four to five years' which would mean from the year 1999 and
2000. Finally, Tekchand admitted that the workmen had applied to
the Labour Court for directions to require him to produce certain
documents, but stated that he had filed a reply setting out therein
that there was a fire in the factory on 23 October 1994, in which, all
the documents were burnt. Finally, Tekchand denied that he had
illegally terminated the services of the workmen or that he was
deposing falsely.

15]
Upon consideration of the evidence on record, the Labour
Court has returned a finding of fact that there was 'employer-
employee relationship'. This Court is unable to detect any perversity
documentary
evidence
is
scarce.
or non-application of mind, in the record of such finding. True,
However,
in
matters
of
appreciation and evaluation of evidence, quality has primacy over
quantity. The workmen have deposed to the factum of employment
and furnished sufficient details as to the nature of their duties, the
location and physical attributes of the factory. As noted earlier, there
was no serious challenge during the course of cross-examination.

Within hardly three weeks from the date of termination, the
workmen made demand upon Tekchand for reinstatement, which
was followed by the complaint to the labour authorities. The
workmen very specifically identified and asserted that Tekchand
was their employer. The workmen have also deposed that Tekchand
was the proprietor in respect of three proprietary concerns, which
were operated from one and the same premises. The Labour Court
has come to the conclusion that the depositions of the workmen
stood the test of cross-examination. So also, Tekchand was unable
to discharge the onus, which had shifted upon him. There is no real
scope to criticize the findings of fact returned by the Labour Court
as being perverse or vitiated by non-application of mind.
16]
Tekchand, it appears has treated the matter of cross-
examination as a mere formality and therefore not bothered to even
put his own case to the workmen. It is well established rule of
evidence that a party should put to each of his opponent's witness
so much of his case as concerns that particular witness. If no such
questions are put, then the Court may presume that the witness'

account has been accepted. If it is intended to suggest that the
witness was not speaking truth upon a particular point, his attention
must be directed to the fact by cross-examination so that he may
have an opportunity of furnishing explanation. The usual practice at
the bar is to accept matters which are not challenged either in the
pleadings or in cross-examination as finally established once a
person enters the witness box and swears to it. If the rule were
otherwise, parties would be obliged to encumber the record with a
mass of material which, in the end result might prove wholly
unnecessary. In matters of cross-examination, the requirement to

put ones own case to the witness is not a mere formality. In
discredited4.
17]
absence of challenge, the deposition of the witness cannot be
There is no merit in the criticism that the Labour Court placed
the burden of proof upon Tekchand. This criticism is possibly fueled
by the circumstance that at one place in the impugned award the
Labour Court has noted that the Tekchand was unable to discharge
the burden which had shifted upon him. Obviously, when the
observation is construed in the light of attendant observations or
circumstances, it is clear that the Labour Court was referring to
'onus' and not 'burden'. The impugned award has to be read in its
entirety and there is no scope to extract a sentence or two de hors
the context. Besides, the position in law is clear in that the burden of
proof never shifts, but the onus of proof shifts and such shifting of
onus is a continuous process in the evaluation of evidence. In effect
therefore, the Labour Court has only held that on the basis of
evidence/material produced on record by the workmen, the onus
4 Sirmal v. Annapurna Devi – AIR 1963 SC 1906, Maroti B. Teli v. Radhabai – AIR 1946 Nag 60 and
Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. - AIR 1958 Punj 440

shifted upon Tekchand, which onus Tekchand failed to discharge. As
noted earlier, degree of proof in such matters, varies from case to
case. The issue of 'employer-employee relationship' is essentially a
question of fact which has to be determined having regard to
cumulative effect of the entire material placed before adjudicatory
forum by the parties. Further, in this context it is necessary to note
that once both the parties have led their respective evidence, the
question of burden of proof, to a great extent, looses its
At this stage, it is necessary to make reference to an

18]
significance.
application made on behalf of the workmen requesting the Labour
Muster Rolls for five years prior to Oct. 1993.
Salary Registers for five years prior to Oct. 1993.
OR
Payment slips or Vouchers for five years from Oct.
1993.
Partnership Agreements of the firms.
Licenses under Bombay Shops and Estt. Act for
five years prior to 1993.
List of persons, workmen employed in the
company.
Letter heads of the firms with address of
Registered Office.”
1.
2.
Court to direct Tekchand to produce the following documents:
3.
4.
5.
6.
19]
In response, Tekchand furnished a reply stating that the
documents were quite 'irrelevant' and in any case, on 23 October
1994, there was fire in the factory premises in which all the
documents were burnt. Alongwith this reply, Tekchand annexed
xerox copies of fire brigade report dated 22 February 1995 and a
panchanama.

20]
The Labour Court made an order dated 5 May 1997 upon
aforesaid application, which reads thus:

ORDER
Reference is made by the Company with a
schedule that second party workman be reinstated with
full back wages and continuity of services. First party
company by filling its written statement denies its relation
with the second party as employer and employee. By this
application second party to prove its relation with the first
party as an employee wanted this court to pass an order
to direct first party company to produce referred
documents. Advocate for the second party has submitted
that it has no evidence to prove its relation with the first
party as an employee and so they want to prove it by way
of the documents to be called from the first party. First
party by filing its affidavit submitted that the documents
called for are not relevant and moreover the entire record
of the company was burnt in a fire dated 23.10.94.
Advocate for the second party wanted to draw an
adverse inference against first party company even at
this stage. However, it does not appear just, fit and
proper to come to such a conclusion at this stage. The
initial burden of proving the relationship lies on the
second party workman only. Hence at this stage with this
observations application is rejected.
Mumbai
Dated: 5.5.97
21]
Presiding Officer
8th Labour Court, Mumbai.
The Labour Court, in its impugned award has however, held
that Tekchand has not 'proved' the fire brigade report and the
panchanama.
22]
Counsels for Tekchand however, submit that since strict rules
of evidence did not apply to proceedings before the Labour Court,
the report and the panchanama ought to have been taken into
consideration.
If
such
documents
had
been
taken
into
consideration, then there would be no occasion to draw any

adverse inference against Tekchand or record that Tekchand had
failed to discharge the onus, which may have shifted upon him in
23]
the course of proceedings.
The counsels for Tekchand are right, in that, strict rules of
evidence normally do not apply before Labour Courts. However, this
principle is surely not a licence to a party to make no efforts
whatsoever to prove documents in accordance with law. In this
case, there is no justification as to why the original documents were
not produced alongwith reply or during the course of examination.

There is no explanation as to why no summons was applied for to
examine the authorities who are said to have made the report or
panchanama. Moreover, what baffles is that there was no whisper in
the written statement filed by Tekchand on 13 February 1996 as
regards the incident of fire which is alleged to have taken place on
23 October 1994. It is settled position in law that there cannot be
any variance between pleadings and proof. In fact, no amount of
proof in respect of a matter not pleaded to, can even be looked into.
In such circumstances, really, no fault can be found with the
impugned order when it holds that Tekchand has not proved the
report and panchanama.
24]
However, counsels for Tekchand made a fervent plea that at
least this Court looks into the report and panchanama with a view to
satisfying itself as to whether Tekchand has or has not been candid
with the Court. There is no real warrant to look into the said
documents, which have been correctly held has not proved by the
Labour Court. However, in deference to the fervent plea, even if
such documents were to be looked into, they would only fortify the

position that Tekchand has been far from candid with the Court. In
fact, from the conduct of Tekchand it does appear that Tekchand
carries an impression that litigation is nothing but a game of chess
25]
or one upmanship.
In the aforesaid regard, it is pertinent to take note of the
specific case set out by Tekchand that he was operating his factory
in a slum area by engaging hardly two to three employees, who
were paid by vouchers. Tekchand strongly disputed the workmen's
evidence that his industry engaged about 70 to 75 workmen for the

purposes of manufacture of readymade garments. Now, if the fire
brigade report and panchanama, upon which substantial and
repeated reliance was placed by counsels for Tekchand is to be
looked into, then the following circumstances emerge:
(A) That the entire unit was operated without obtaining
trade licence under Section 394 of the BMC Act or for
that matter permissions from any statutory authorities;
(B) That the employer was using an electric power for
at least 10 electric irons and number of
sewing
machines without any factory permit or permissions from
any other authorities;
(C) That there were at least 14 ironing tables, 10
electric irons, color top, finding machine and other
material which is found to be damaged by fire, heat,
smoke and water;
(D) The employer has deposed that he had employed
services of a security guard Rupesh Kumar Jagdish
Singh, who in fact telephonically informed the employer
about the fire;
(E) The reports, make reference to 'garment factory'
admeasuring about 1000 sq. ft. housed in ground floor

RCC building with A.C. Sheets and roof structures and a
loft admeasuring about 800 sq. ft.;
26]
(F) The report makes reference to workers and the
employer has himself stated that his relationship with the
workers was cordial and therefore he did not suspect
any foul play.
From the aforesaid, it appears Tekchand was involved in
operation of some kind of 'sweat shop' in slum area by disregarding
with impunity, all labour and safety regulations. Tekchand, in his
deposition, curiously feigned innocence as to whether or not he had
obtained any licences to operate his factory. The fire brigade report
and panchanama however make it clear that Tekchand was
operating his factory without obtaining any permissions or licences
from the statutory authorities. In case, such permissions or licences
had been obtained, which in fact, Tekchand was duty bound to
obtain, then at least some records with regard to employment would
be available with the statutory authorities. Tekchand, therefore, is
now bent upon taking advantage of his own unauthorized acts of
commencing and operating factory without any regard to labour
laws and safety legislations. At least a writ court, which exercises
equitable jurisdiction, will not permit a petitioner to draw such
mileage from out of his own unauthorized acts. It is even otherwise,
a settled principle in law, that no person can be permitted to take
undue and unfair advantage of his own wrongs. The maxims 'Nullus
commodum capere potest de injuria sua propria' (No man can take
advantage of his own wrong) is one of the salient tenets of equity.
Hence, in the normal course, a party cannot secure assistance of a
court of law for enjoying the fruits of his own wrong acts5.
5 Kusheshwar P. Singh Vs. State of Bihar & ors. - (2007) 11 SCC 447 and Ashok Kapil v. Sana Ullah –
(1996) 6 SCC 342

The report and panchanama also indicate that the industry
27]
was operating from ground floor premises having area of about
1000 sq.ft as also a loft ad-measuring about 800 sq. ft. In the
industry premises, there were number of sewing machines, electric
irons,
ironing
tables
amongst
other
equipments.
In
such
circumstances, the repeated statement of Tekchand that he
employed only two to three employees, was clearly unacceptable.
Incidentally, Tekchand was unable to even state the names of such
two to three employees, who were admittedly employed by him.

Instead, Tekchand was bent upon stone walling the truth, which is
evident from his demeanor as recorded by the Labour Court in the
28]
course of evidence.
Counsels for Tekchand, then contended that that in para 11 of
the impugned award, the Labour Court has placed reliance upon
the documents which do not form a part of the record. Upon careful
examination, it is clear that there is no merit in this submission. In
para 11 of the impugned award, there is reference made to Exhibit
U-12, which was indeed referred to in the course of evidence of the
Tribhuvandas. Athough the evidence is not very clear as to whether
letter under Exhibit U-12 pertains to Tribhuvandas or not, one thing
is clear that it pertains to one of the workmen involved in the
dispute. In any case, since there is specific reference to Exhibit U-
12 in the deposition of the workman, it cannot be said that the
Labour Court has referred to some documents, which were not a
part of record. Besides, other documents referred to in para 11 of
the impugned award, are the documents in respect of which the
workmen had made an application under Exhibit U-6 seeking

direction to the employer for production of the same. The mere fact
that such documents have been referred, does not mean that the
Labour Court has placed reliance upon the same. In fact, such
documents were never produced by any of the parties as it was the
case of the employer that the same were burnt in fire on 23 October
1994. The Labour Court, upon examination of fire brigade report
and panachanama, noted that they do not make any reference to
the documents. However, even if some allowance is made to the
Tekchand's criticism on this aspect, the contention that the Labour
Court has placed reliance upon the material which did not form part

of the record, is clearly not borne out. Such contention therefore,
29]
deserves to be rejected.
Counsels for Tekchand, then contended that there is no proof
that the workmen have worked for 240 days in the year preceding
date of termination. Again there is no merit in this contention. The
workmen have deposed to this fact. Tekchand's only defence was
that the workmen were not his employees at all. Once such defence
has been adjudged unreliable, there is no question of falling back
upon the plea that the workmen have not established the factum of
240 days service in the year proceeding the date of termination.
Again, as noted earlier, this is also a finding of fact and in absence
of any perversity, there is no question of interference with the same.
30]
Counsels for Tekchand, then adverted to some minor errors in
the impugned award. The errors, which the counsels point out, are
clearly attributable to the circumstance that all references were
taken up together for disposal by the Labour Court. In fact,
Tekchand led common evidence in all the references. The errors
broadly relate to the number of years of services put in by each of
the workmen or salary which they drew. Such errors are minor and
irrelevant, if the totality of the context is addressed. The errors are
certainly not such as would go to the root of jurisdiction or otherwise
make any dent in the case of the workmen. The plea for remand
based upon such errors, also does not appeal to this Court,
particularly at this length of time. The conduct of the petitioner is
also not such, as would really entitle the petitioner to secure the
assistance of the Court, particularly in the exercise of extra ordinary
and equitable jurisdiction under Article 226 of the Constitution of
In the result, this Court sees no reason to interfere with the
31]

India.
impugned award. Rule is, accordingly, discharged. In the facts and
circumstances of the case, the petitioner shall pay costs of
Rs.5,000/- to the respondent-workman. In case any amounts have
been deposited by the petitioner under the interim orders made by
this Court, the Registry is directed to pay the same to the
respondent – workman within a period of four weeks from today.
(M. S. SONAK, J.)
32]
At this stage, Mr. Agvekar learned counsel for the petitioner,
seeks stay on the implementation of the impugned award for a
period of eight weeks, as the petitioner desirous to seek recourse
against the judgment and order, just pronounced in accordance with
law.
Mr. Dilip Mandavia, learned counsel for the respondent
submits that the workmen have been deprived benefits of the
impugned award in their favour from the year 2008 and therefore,
restraint of four weeks would suffice.

33]
Taking into consideration the circumstance that there is
interim relief operating in favour of the petitioner right from the year
2008, it is only proper that such interim relief continues for a period
of eight weeks from today. Accordingly, the implementation of the
impugned award is stayed for a period of eight weeks from today.

(M. S. SONAK, J.)

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