APPLICATION UNDER ORDER 37 RULE 3(5) CPC

IN THE MATTER OF:-**

XXXXX ..…...Petitioner

XXXXX .......Respondent

INDEX

Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

XXXXXXXXXXXXXXX

ADDRESS: XXXXXXX …….Petitioner

XXXXXXXXXXXXXXXX

ADDRESS: XXXXXXXX ……..Respondent

Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

  

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

    URGENT APPLICATION

To

The Registrar

High Court of Delhi

      New Delhi

Sir,

Kindly treat the accompanying petition as urgent in accordance with the High Court Rules and Orders for the reason that the Petition has prayer for urgent relief.

Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

NOTICE OF MOTION

To,

XXXXXXXX

Sir,

Take notice that the accompanying Writ Petition is being filed on behalf of the Petitioner which is likely to be listed before the Hon’ble Court on ____________or any day thereafter.

     Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

COURT FEE

 Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

SYNOPSIS

Petitioner by way of above captioned Writ Petition under Article 226 of the Constitution of India in the nature of Certiorari or any other appropriate Writ in the nature of Certiorari is challenging Award dated XXXXX passed by XXXXX, Presiding Officer Labour Court, South West District, Dwarka Courts, Delhi (Now in Rouse Avenue Court Complex) in LIR No. XXXXX, whereby Ld. Presiding Officer has passed Award under Section 25F of Industrial Disputes Act, 1947 (“the Act”) admittedly when Respondent- Workman has failed to prove the existence of employer and employee relationship and also failed to discharge his burden of proof of he being in continuous service for a period of one year as prescribed under Section 25B read with Section 25F of the Act. Secondly Ld. Presiding Officer has shifted the burden of proof of the aforesaid twin conditions for invoking section 25F of ID Act and substituted its proof by drawing an adverse inference against the petitioner management especially no application for production of any document was filed by the respondent workman and no directions were issued on such applications to produce any such document. Moreover, the respondent workman has failed to discharge his burden of proof that he was not gainfully employed by either by producing his saving bank passbook or his Aadhar Card enabling the petitioner to uncover his story of unemployment. Thus, the award as passed by Ld. Labour Court is ex-facie illegal. Hence this petition.

DATE-XX The Respondent-Workman filed a claim before the Labour Court on the premise that he was working as a “XXXX” from XXXX at a last drawn salary of XXXX- per month. He further claimed that no letter of appointment was ever given to him, but he was provided identity card by the management. He further claimed that he was deputed to work at a different sites and he was also given identity card so that he could enter that premises and perform his duty without any hindrance. He further claimed that he used to mark his presence on plain sheet. He further claim that he used to work in the night shift for which he was paid by the management and he was paid subsistence amount for the meals when he used to work in late hours as per the schedule of the management and his services has been illegally terminated on XXXX when he demanded the statutory facilities from the management. Copy of claim is annexed herewith as Annexure P-1.

DATE: XX Petitioner management by way of written statement refuted the claim of the respondent-workman and defended the claim on the premise that there had been no master and servant relationship between the petitioner management and the respondent-workman, and the respondent-workman had been daily wager / independent contractor having no control of the management whatsoever over the respondent at any point of time, the respondent-workman was a seasonal worker, as the Tent Industry is a seasonal industry. It was further pleaded that the workman management was never in continuous service of XXX days in the year preceding the date of alleged termination i.e. XXXXXX. Copy of written statement is annexed herewith as Annexure–P-2.

DATE: XX The respondent-workman by way of rejoinder controverted the averments of the petitioner management and reiterated the averments made in the statement of claim. Copy of rejoinder is annexed herewith as Annexure P-3.

DATE: XX In support of his claim, the Respondent-Workman examined himself as WW-1 and his evidence by way of affidavit is exhibit WW-1/A. In order to substantiate his claim, he produced copy of temporary gate pass issued by the Budha International Circuit exhibited as Ex. WW-1/1, temporary gate pass issued by J.P Hospitality exhibited as Ex. WW-1/2, 3 gate pass issued by ITC Maurya exhibited as Ex. WW-1/3, temporary gate pass issued by Maa Rani exhibited as Ex. WW-1/4, temporary gate pass issued by Orchids exhibited as WW-1/5, temporary gate pass issued by Shangrila exhibited as WW-1/6, copy of election card marked as Marked-1 and attendance sheet marked as Marked – 2 (Colly). Copy of statement of Respondent-workman is annexed herewith as Annexure-P-4. Copy of documents exhibited as Ex. WW-1 to 6 and Marked-1 and 2 are annexed herewith as Annexure-P-5 to P-12.

DATE: XX Besides the deposition of the respondent himself and documents as aforesaid, he examined XXXXXX as WW-2 whose evidence by way of affidavit exhibited as Ex. WW-2/A. During his examination he exhibited attendance card as Ex. WW-2/1, Letter Head of sister concern as Ex. WW-2/2, Salary Vouchers for different months as Ex. WW-2/3, Challan of Vehicles as Ex. WW-2/4, gate pass issued by the management to WW-2 as WW-2/5, Transit Declaration form as Ex. WW-2/6, Report of Labour Inspector as Ex. WW-2/7, ESI Card of WW-2 as Ex. WW-2/8, I Card of WW-2 issued by XXXXXXXX (Union) as Ex. WW-2/9. WW-2 also relied upon list of co-workers who had joined Union as Marked-A, list of commercial vehicle numbers plied by the management for conveyance of goods and labourers as Marked-B, Vehicle permission gate pass dated XXXXXX as Marked-C and installation certificate of Vehicle Tata XXX bearing registration No.XXXXXXX as Marked-D. Copy of statement of WW-2 is annexed herewith as Annexure-P-13. Copy of Exhibited documents exhibited as WW-2/1 to WW-2/9 are annexed herewith as Annexure-P-14 to P-22. Copy of marked documents marked as Marked A to D are annexed herewith as Annexure P-23 to P-26.

Petitioner humbly submits that Respondent-Workman has placed reliance upon 8 gate passes i.e. dated XXXXXX, XXXXXX, XXXXXX, XXXXXX, XXXXXX, XXXXXX, dated Nil, dated Nil, to support his plea. These gate passes are firstly, daily gate pass, secondly they are spread over a period of four years out of his claim of his working with the management since May XXX. Assuming, without admitting his employment with the management-petitioner, perusal of the aforesaid gate passes clearly shows that he was either a daily wage earner or he was an independent contractor. Secondly, even after consolidation of all working days which comes to 4, which does not satisfy the pre condition of continuous service of XXX days preceding his date of termination i.e. XXXXX. Thus, the aforesaid gate passes neither establishes any master and servant relationship between the petitioner and the respondent nor fulfill the conditions of continuous service for invoking the benefit of section 25F of the Industrial Disputes Act, 1947. Obviously, in these circumstances, daily wage earner/independent contractor shall have no letter of appointment, no statutory benefits and no recording of his name in the muster role of the management. Thus, in view of the documents more specifically, the gate passes produced by the workman himself knock out the entire foundation of his case, as such, the claim of the workman should have been rejected by the Ld. Labour Court.

Petitioner further submits that the workman-respondent has produced copy of attendance card/sheet for the period July XXX, November XXX, dated Nil, June XXX, November XXX, November, September XXX, October XXX, June XXX, January XXX, December XXX, February XXX, May XXX, February XXX, January XXX, September XXX, which are only the photocopies, not admissible in evidence at all. It is humbly submitted that on the perusal of these attendance cards / attendance sheets nowhere indicates that the said documents pertains or in any manner relates to the petitioner or do not indicates that there was any master and servant relationship between the petitioner and the respondent. Thus, in these circumstances also claim of the respondent was not maintainable before the Ld. Labour Court and ought to have been rejected by Ld. Labour Court.

Petitioner humbly submits that the respondent workman has examined that XXXXXXXX as WW-1 to substantiate claim of employment and continuous service, who in order to establish his own employment since March XXXX to September XXXX produced voluminous records including the letter heads of the company its sister concerns, Challans, Transit Declaration Form, ESI Card and ESI registration certificate in his employment for a period of XXXX years. On the other hand, the respondent workman in order to established his claim of employment for a period of XXXX years, even could not produced even a single document linking him with the petitioner management and even his employment for a period of XXX days prior to his date of alleged termination i.e. XXXXX. Thus, the very foundation of the claim of the respondent is not established, as such, the Labour Court to have rejected the claim of the respondent-workman.

Petitioner humbly submits that admittedly, WW-2 was in regular employment of the petitioner management and an admitted case of the respondent workman is that he has always worked on the out door sites, as such the statement of WW-1 proving the employment of the respondent workman is highly improbable. It is a settled position of law that documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot. Thus, in view of the documents placed on records opposite to the statement of WW-2, must be given regard to and the statement of WW-2 ought to have been rejected by the Ld. Labour Court.

With great respect, it is humbly submitted that it is the settled position of law that burden of proof for establishing the existence of employer and employee relationship and also the fact that the workman was in continuous service of XXX days in a year preceding to his date of termination would be on the workman himself and it is for the workman to adduce evidence apart from examining himself to proof the factum of the in employment of the employer. However, in the present case, the respondent-workman has miserably failed to pay prove the existence of employer and employee relationship and his continuous service of XXX days in the preceding year in terms of section 25B of the ID Act. It is humbly submitted that Ld. Labour Court instead of rejecting the claim of the respondent-workman has proceeded on the assumption of continuous service on the basis of the aforesaid 4 gate pass (daily) spread over a period of XXX years, which even consolidated could not prove the continuous service of XXX days. The Ld. Labour Court also lost the sight of the fact that the attendance card and the attendance sheets/cards in the form of photocopies (though inadmissible) also does not indicate any link between the said sheets / cards with the petitioner nor such sheets/cards anywhere discloses that the respondent workman has ever worked on regular employment with the petitioner. Moreover, the Court has proceeded on the point of “adverse inference” against the petitioner management for not producing the documents. It is humbly submitted that Ld. Labour Court has indicated in the paragraph 14 at page 15 of the impugned order

“14…. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.”

Admittedly in the present case no such application has been filed calling upon the management to call for any record of his employment to be produced, as such drawing an adverse inference, in absence of such application, is not only against the spirit of law but also against the principles of natural justice. Even otherwise, it is also a settled position of law that a burden of proof would be on the person, who would fail if no evidence is led on either side. In view of this settled position, Ld. Labour Court could not shift the burden of proofs from workman to the management, especially when the workman has failed to even prima facie show any existence of employer and employee relationship and also the factum of continuous service of XXX days in the preceding year of his termination. Thus, the award as passed is ex-facie illegal.

Hence, this Writ Petition.

Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

email-XXXXXXX

  

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

**
   IN THE MATTER OF:**

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT IN THE NATURE OF CERTIORARI CHALLENGING AWARD DATED XXXX PASSED BY XXXXX ADJ, PRESIDING OFFICER LABOUR COURT, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI (NOW IN ROUSE AVENUE COURT COMPLEX) IN LIR NO. XXXXXXX (OLD LIR NO. XXXXXXX) WHEREBY LD. PRESIDING OFFICER HAS PASSED THE AWARD UNDER SECTION 25F OF INDUSTRIAL DISPUTES ACT, 1947 (“THE ACT”) ADMITTEDLY WITHOUT FOLLOWING THE MANDATE OF LAW.

To,

The Hon’ble Chief Justice and His Companion Justices of The Hon’ble High Court of Delhi at New Delhi.

1.  That the Petitioner by way of above captioned Writ Petition under Article 226 of the Constitution of India in the nature of Certiorari or any other appropriate Writ in the nature of Certiorari is challenging Award dated XXXXX passed by XXXXX, ADJ, Presiding Officer Labour Court, South West District, Dwarka Courts, Delhi (Now in Rouse Avenue Court Complex) in LIR No. XXXXX (Old LIR No. XXXXX ) whereby Ld. Presiding Officer has passed Award under Section 25F of Industrial Disputes Act, 1947 (“the Act”) admittedly without following the mandate of law i.e. firstly the relationship of master and servant was not established, secondly it was also not established that the respondent – workman was in continuous service for a period of one year as prescribed under Section 25B read with Section 25F of the Act. Thus, the Award as passed by Ld. Presiding Officer is ex-facie illegal.  Hence this petition.    
   

2. The factual matrix leading to the present petition is as under: -

2.1 That the Respondent-Workman filed a claim before the Labour Court on the premise that he was working as a “Painter” from May XXX at a last drawn salary of Rs. XXX/- per month. He further claimed that no letter of appointment was ever given to him, but he was provided identity card by the management. He further claimed that he was deputed to work at a different sites and he was also given identity card so that he could enter that premises and perform his duty without any hindrance. He further claimed that he used to mark his presence on plain sheet. He further claim that he used to work in the night shift for which he was paid by the management and he was paid subsistence amount for the meals when he used to work in late hours as per the schedule of the management.

2.2 That the respondent workman further claimed that the management did not provide other legal facilities like weekly rest, casual leave, earned leave, no deduction of wages for weekly rest, leave book, appointment letter, salary slip to the workman and when he demanded the same, the petitioner-management got annoyed and terminated his services on XXXXX. It is was further claimed that the respondent-workman sent a letter dated XXXX to the petitioner management through speed post to pay the wages for the period he worked but the said letter was never replied nor earned wages were paid by the management to the respondent-workman. It was further claimed that he stated to have approached the labour department but the management did not appeared there nor any documents were produced by the management before the labour department. It was further pleaded that his termination by the management is illegal and he is unemployed. He prayed that the termination of the respondent-workman from the employment of the management be set-aside and the management be directed to pay full wages for the period worked and for the period of unemployment and the cost of litigation may be provided to the respondent-workman. Copy of claim is annexed herewith as Annexure-P-1.

2.3 That on XXXX, Petitioner management by way of written statement refuted the claim of the respondent-workman and defended the claim on the premise that there had been no master and servant relationship between the petitioner management and the respondent-workman, and the respondent-workman had been daily wager / independent contractor having no control of the management whatsoever over the respondent at any point of time, the respondent-workman was a seasonal worker, as the Tent Industry is a seasonal industry. It was further pleaded that the workman management was never in continuous service of XXX days in the year preceding the date of alleged termination i.e. XXXX. Copy of written statement is annexed herewith as Annexure–P-2.

2.4 That the respondent-workman by way of rejoinder controverted the averments of the petitioner management and reiterated the averments made in the statement of claim. Copy of rejoinder is annexed herewith as Annexure P-3.

2.5 That on XXXXX, Ld. Labour Court from the pleadings of the parties framed the following issues for trial:-

(1). Whether management work is of seasonal nature and workman is a seasonal worker and work on temporary basis as per requirement, If so what effect ? OPM

(2). Whether there exist no relationship of employer and employee between the claimant and management ? OPW

(3). Whether the claimant has not completed XXX days service continuously in a year. If so what effect? OPW

(4) As Per terms of reference.

2.6 That in support of his claim, the Respondent-Workman examined himself as WW-1 and his evidence by way of affidavit is exhibit WW-1/A. In order to substantiate his claim, he produced copy of temporary gate pass issued by the Budha International Circuit exhibited as Ex. WW-1/1, temporary gate pass issued by J.P Hospitality exhibited as Ex. WW-1/2, 3 gate pass issued by ITC Maurya exhibited as Ex. WW-1/3, temporary gate pass issued by Maa Rani exhibited as Ex. WW-1/4, temporary gate pass issued by Orchids exhibited as WW-1/5, temporary gate pass issued by Shangrila exhibited as WW-1/6, copy of election card marked as Marked-1 and attendance sheet marked as Marked – 2 (Colly). Copy of statement of Respondent-workman is annexed herewith as Annexure-P-4. Copy of documents exhibited as Ex. WW-1 to 6 and Marked-1 and 2 are annexed herewith as Annexure-P-5 to P-12.

2.7 That besides the deposition of the respondent himself and documents as aforesaid, he examined XXXXX as WW-2 whose evidence by way of affidavit exhibited as Ex. WW-2/A. During his examination he exhibited attendance card as Ex. WW-1/1, Letter Head of sister concern as Ex. WW-2/2, Salary Vouchers for different months as Ex. WW-2/3, Challan of Vehicles as Ex. WW-2/4, gate pass issued by the management to WW-2 as WW-2/5, Transit Declaration form as Ex. WW-2/6, Report of Labour Inspector as Ex. WW-2/7, ESI Card of WW-2 as Ex. WW-2/8, I Card of WW-2 issued by XXXXX (Union) as Ex. WW-2/9. WW-2 also relied upon list of co-workers who had joined Union as Marked-A, list of commercial vehicle numbers plied by the management for conveyance of goods and labourers as Marked-B, Vehicle permission gate pass dated XXXX as Marked-C and installation certificate of Vehicle Tata XXXX bearing registration No. XXXXX as Marked-D. Copy of statement of WW-2 is annexed herewith as Annexure-P-13. Copy of Exhibited documents exhibited as WW-2/1 to WW-2/9 are annexed herewith as Annexure-P-14 to P-22. Copy of marked documents marked as Marked A to D are annexed herewith as Annexure P-23 to P-26.

2.8 That the Petitioner submits that Respondent-Workman has placed reliance upon 8 gate passes i.e. dated XXXXX, XXXX XXXXX, XXXXX, XXXXX, XXXXX, XXXXX, dated Nil, dated Nil, to support his plea. These gate passes are firstly, daily gate passes, secondly they are spread over a period of three years out of his claim of his working with the management since May XXX. Assuming, without admitting his employment with the management-petitioner, perusal of the aforesaid gate passes clearly shows that he was either a daily wage earner or he was an independent contractor. Secondly, even after consolidation of all working days which comes to 8, which does not satisfy the pre condition of continuous service of XX days preceding his date of termination i.e. XXXXX. Thus, the aforesaid gate passes neither establishes any master and servant relationship between the petitioner and the respondent nor fulfill the conditions of continuous service for invoking the benefit of section 25F of the Industrial Disputes Act, XXX. Obviously, in these circumstances, daily wage earner/independent contractor shall have no letter of appointment, no statutory benefits and no recording of his name in the muster role of the management. Thus, in view of the documents more specifically, the gate passes produced by the workman himself knock out the entire foundation of his case, as such, the claim of the workman should have been rejected by the Ld. Labour Court.

2.9 That the Petitioner further submits that the workman-respondent has produced copy of attendance card/sheet for the period July XXX, November XXX, dated Nil, June XXX, November XXX, November, September XXX, October XXX, June XXX, January XXX, December XXX, February XXX, May XXX, February XXX, January XXX, September XXX which are only the photocopies, not admissible in evidence at all. It is humbly submitted that on the perusal of these attendance cards / attendance sheets nowhere indicates that the said documents pertains or in any manner relates to the petitioner or do not indicates that there was any master and servant relationship between the petitioner and the respondent. Thus, in these circumstances also claim of the respondent was not maintainable before the Ld. Labour Court and ought to have been rejected by Ld. Labour Court.

2.10 That the Petitioner humbly submits that the respondent workman has examined that Sh. Amar Pal Singh as WW-1 to substantiate claim of employment and continuous service, who in order to establish his own employment since March XXX to September XXX produced voluminous records including the letter heads of the company its sister concerns, Challans, Transit Declaration Form, ESI Card and ESI registration certificate in his employment for a period of XX years. On the other hand, the respondent workman in order to established his claim of employment for a period of X years, even could not produced even a single document linking him with the petitioner management and even his employment for a period of XXX days prior to his date of alleged termination i.e. XXXX. Thus, the very foundation of the claim of the respondent is not established, as such, the Labour Court to have rejected the claim of the respondent-workman.

2.11 That the Petitioner humbly submits that admittedly, WW-2 was in regular employment of the petitioner management and an admitted case of the respondent workman is that he has always worked on the out door sites, as such the statement of WW-1 proving the employment of the respondent workman is highly improbable. It is a settled position of law that documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot. Thus, in view of the documents placed on records opposite to the statement of WW-2, must be given regard to and the statement of WW-2 ought to have been rejected by the Ld. Labour Court.

3. With great respect, it is humbly submitted that it is the settled position of law that burden of proof for establishing the existence of employer and employee relationship and also the fact that the workman was in continuous service of XXX days in a year preceding to his date of termination would be on the workman himself and it is for the workman to adduce evidence apart from examining himself to proof the factum of the in employment of the employer. However, in the present case, the respondent-workman has miserably failed to pay prove the existence of employer and employee relationship and his continuous service of XXX days in the preceding year in terms of section 25B of the ID Act. It is humbly submitted that Ld. Labour Court instead of rejecting the claim of the respondent-workman has proceeded on the assumption of continuous service on the basis of the aforesaid 8 gate pass (daily) spread over a period of 4 years, which even consolidated could not prove the continuous service of XXX days. The Ld. Labour Court also lost the sight of the fact that the attendance card and the attendance sheets/cards in the form of photocopies (though inadmissible) also does not indicate any link between the said sheets / cards with the petitioner nor such sheets/cards anywhere discloses that the respondent workman has ever worked on regular employment with the petitioner. Moreover, the Court has proceeded on the point of “adverse inference” against the petitioner management for not producing the documents. It is humbly submitted that Ld. Labour Court has indicated in the paragraph 14 page 15 of the impugned order:-

“14…. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.”

Admittedly in the present case no such application has been filed calling upon the management to call for any record of his employment to be produced, as such drawing an adverse inference, in absence of such application, is not only against the spirit of law but also against the principles of natural justice. Even otherwise, it is also a settled position of law that a burden of proof would be on the person, who would fail if no evidence is led on either side. In view of this settled position, Ld. Labour Court could not shift the burden of proofs from workman to the management, especially when the workman has failed to even prima facie show any existence of employer and employee relationship and also the factum of continuous service of XXX days in the preceding year of his termination, Thus, the award passed by the Ld. Labour Court is ex-facie illegal and is contrary to law. In these hard pressed circumstances, the petitioner has no alternative efficacious remedy except invoke the jurisdiction of this Hon’ble Court under Article 226 of The Constitution of India inter-alia on the following amongst other grounds:-

G R O U N D S

A. Because Ld. Labour Court has failed to appreciate that under section 25F of the Industrial Disputes Act, the burden of proof lies on the workman to show that he had worked continuously for XXX days preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer. It is humbly submitted the respondent workman has neither produced any evidence nor has discharged his burden of proof he being in continuous service of XXX days preceding 1 year of his alleged termination i.e. XXX. In the present case, the workman has not produced any evidence in order to show that he was in employment of the petitioner between XXX to XXX. Thus, in absence of any evidence to establish the pre-condition of continuous service, the invocation of section 25F of ID Act by the Ld. Labour Court is ex-facie illegal and the award as passed by Ld. Labour Court is liable to be set-aside.

B. Because Ld. Labour Court has failed to appreciate that right to reason is an indispensible part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. another rationale of reasoning is that the affected party can know why the decision have gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. It is humbly submitted that Ld. Labour Court while passing the impugned award, in major portions of the award has reiterated the pleadings and the evidence of the parties, even while deciding the issues no.2 and 3 in para no.14 of the award Ld. Labour Court has only discussed the position of law in all 4 pages has not even given any reasoning for a deciding issues against the petitioner. Thus, the award as passed by Ld. Labour Court is ex-facie illegal and is liable to be set-aside.

C. Because Ld. Labour has failed to appreciate that in Labour and Industrial Jurisprudence, an adverse inference could be drawn against the management only when an application for production of such documents would have been filed before the Ld. Labour Court and necessary directions would have been passed in that regard for production of such documents, and in such circumstances non production of relevant documents or employment documents as a directed, would lead to drawing of an adverse inference against the management. In the present case, neither any such application has been filed nor any such direction was issued by Ld. Labour Court, as such, drawing an adverse inference by the Ld. Labour Court and thereby shifting the burden of proof of existence of relationship of employer and employee and also burden of proof of continuous service by a daily wager / independent contractor on the employment, is ex-facie illegal, as such the award has passed is liable to be set-aside.

D. Because Ld. Labour Court has failed to appreciate that workman has to stand on his own legs and the general principles of evidence applies to the proceedings of the Ld. Labour Court. It is humbly submitted that Section 101 of Evidence Act 1872, envisages that whoever desires any court to give judgment as to any legal right or liability dependent upon the existence of facts which he asserts, much prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act envisages that burden of proof in a suit or proceedings lies on that person who would fail if no Evidence at all were given on either side. The conjoint reading of both the above said provisions clearly establishes that workman has to stand on his own legs and in case he does not establish the fact of existence of employer and employee relationship and also his continuous service of XXX days, he would fail if no evidence is led by the workman to establish the above said fact. Thus, the burden of proof lies on him and the adverse inference could not substitute the proof of existence of fact by the workman. In the present case no evidence has been led by the workman to prima facie establishes his case, as such he not entitled to any relief as claimed. In these circumstances, the award has passed is liable to be set-aside.

E. Because the Ld. Labour Court has failed to appreciate that it is a judicially noticeable fact that Tent House Industry in India is a Seasonal Industry considering the religious and spiritual belief of the people in the various tenets of the community. Due to advancement of technology and luxurious life style, the people have shifted to fixed pandals and banquets for security and other reasons. Admittedly in the present case it has not been the case of the respondent workman that the petitioner management owns any fixed or permanent pandals or he was employed at any location for a longer period then couple of days. It is humbly submitted that Ld. Labour Court instead of taking judicial notice of this fact that Tent House Industry is a Seasonal Industry in itself and the respondent workman has failed to dispel such fact by leading the evidence contrary thereto. Thus, the award has passed by Ld. Labour Court is ex-facie illegal and is liable to be set-aside.

F. Because Ld. Labour Court has failed to appreciate that burden of proof having regard to the principles analogous to section 106 of Evidence Act that he was not gainfully employed was on the workman. Admittedly in the present case, the workman has not produced his Pass Book of his saving bank or his family members dependent upon him and has deliberately withheld his Aadhar Card enabling the petitioner to confront the respondent workman during his cross examination with his earning etc linked with his Aadhar Card. Thus, the respondent workman has failed to establish before the Ld. Labour Court that he was not gainfully employed, as such grant of compensation by the Ld. Labour Court in absence of any evidence of unemployment is ex-facie illegal and the award as passed is liable to be set-aside.

G. Because the Ld. Labour Court has failed to appreciate that awarding reinstatement of workman is directly linked with the existence of relationship between employer and employee. In the present case, the workman has miserably failed to establish the master and servant relationship, as such reinstatement of the respondent with the petitioner is ex-facie illegal and the award as passed is liable to be set-aside.

H. Because impugned award dated XXXX is illegal and contrary to law and are liable to be set-aside. The petitioner reserves its right to raise additional grounds, with the leave of this Hon’ble Court, during the course of submissions.

1. The petitioner has not filed any petition appeal or proceeding challenging award dated XXX passed by Ld. Labour Court claiming identical or similar reliefs either before this Hon’ble Court or before the Hon’ble Supreme Court of India.

  

In the premises, as aforesaid, it is therefore most respectfully prayed that this Hon’ble Court may be pleased to:-

i) Issue a Writ of Certiorari or any other appropriate Writ in the nature of Certiorari setting aside Award dated XXX passed by XXXX, ADJ, Presiding Officer Labour Court, South West District, Dwarka Courts, Delhi (Now in Rouse Avenue Court Complex) in ID No. XXXX, thereby rejecting the claim of the respondent-workman or in alternative set aside the aforesaid award and Order date XXXX thereby remanding back the above said matter for leading evidence by the Petitioner-Management and for the just decision of the case on merits by Ld. Labour Court; and

ii) Pass any other further order(s)/direction(s) as this Hon’ble Court may deem fit and appropriate in the facts and circumstances of the present case.

     Date: XXXXXXXXXXX

      Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

      Email - XXXX

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

L.P.A No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

I, XXXXX aged about XX years S/o XXXX partner of XXXX Address: XXXX do hereby solemnly affirm and declare as under:

1. That I am the partner of the Petitioner in the above captioned writ petition and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying writ petition has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

4. That the contents of the list of dates and events are drafted by my counsel on my instructions which are true to the best of my knowledge derived from the records maintained by me.

5. That the contents of Para to and to of the Petition are drafted by my counsel and based on Legal Advice received from the counsel of the Petitioner which the Petitioner believes to be true.

6. That the Annexures to the Petition are true copies of their respective originals.

7. That the Petitioner has not preferred any similar Petition or other appeal in the above-mentioned matter.

DEPONENT

Verified at XXXX on this day of XXXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX ..…...Petitioner

XXXXX .........Respondent

I, XXXXX aged about XX years S/o XXXXX partner of XXXXX, Address: XXXX do hereby solemnly affirm and declare as under:

1. That the deponent is the Partner of the Petitioner Firm in the above captioned LPA and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying application has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

DEPONENT

Verified at XXXX on this day of XXXXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P. No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

APPLICATION U/S 151 OF CPC FOR STAY

1. That the Petitioner has filed the accompanying writ petition. The contents of the same may be read as part of this application and the same has not been repeated herein for the sake of brevity.

2. That the award dated XXXX has been passed by Ld. Labour Court without any proof of existence of employer and employee relationship and proof of continuous service of the workman. Thus the petitioner has a prima facie good case and balance of convenience also lies in its favour.

3. That the petitioner has come to know that the officials of the labour office are coming for implementation of the impugned award, as such, the petitioner shall cause irreparable loss and injury which cannot be compensated in terms of money.

4. That if the ad interim stay is not granted, the petitioner shall be seriously prejudiced. On the other hand, the respondent shall not be prejudiced in any manner whatsoever.

      In the premises, as aforesaid, it is therefore prayed that this Hon’ble Court may be pleased to:-

(a) Grant ad-interim ex-parte stay the operation of Award dated XXXX passed by XXXX, ADJ, Presiding Officer Labour Court, South West District, Dwarka Courts, Delhi (Now in Rouse Avenue Court Complex) in LIR No. XXXXX (Old LIR No. XXXXX), during the pendency of the above captioned writ petition; and

(b) Pass any further order(s)/direction(s) as this Hon’ble Court may deem fit and proper.

  Date: XXXXXXXXXXX

      Place: Advocate for Petitioner

      Off: XXXXXX

Mob-XXXXX

      Email -XXXXXXX

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20XX

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

APPLICATION FOR EXEMPTION FROM FILING LEGIBLE AND TYPED COPY OF ANNEXURES AND ALSO FROM FILING IN THE PRESCRIBED MARGIN

1. That the Petitioner has filed copies of certain documents along with the petition which are true copies of their respective originals.

2. That Due to paucity of time, petitioner could not file the legible and typed copies of the Annexures. Some of such copies of not in prescribed margin.

3. The Petitioner undertakes to file the legible and typed copies of the Annexures in the prescribed margin, as and when directed by this Hon’ble Court.

  

  

      In view of the facts and circumstances as stated above and in the interest of justice this Hon’ble Court may be pleased to: -

a) Exempt the Petitioner from filing legible and typed copies of the Annexures; and

b) Exempt the petitioner from filing Copies of Annexures in prescribed margin; and

c) Pass any such further order or direction as may be deemed fit, proper, necessary and expedient.

 Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

      Email XXXXXXX

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

L.P.A No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent**
APPLICATION FOR EXEMPTION FROM FILING ENGLISH TRANSLATION OF ANNEXURES IN VERNACULAR**

1. That the Petitioner has filed copies of certain documents in vernacular along with the petition which are true copies of their respective originals.

2. That Due to paucity of time, petitioner could not get the english translation of the annexures in vernacular.

3. The Petitioner undertakes to file the translated copies of the annexures, as and when directed by this Hon’ble Court.

In view of the facts and circumstances as stated above and in the interest of justice this Hon’ble Court may be pleased to: -

a) Exempt the Petitioner from filing translated copies of the Annexures; and

b) Pass any such further order or direction as may be deemed fit, proper, necessary and expedient.

Date: XXXXXXXXXXX

     Place Advocate for Petitioner

      Off: XXXX

Mob-XXXXX

      Email - XXXXXX

     IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

      APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPIES OF ANNEXURES

1. That the Petitioner has filed copies of certain documents along with the petition which are true copies of their respective originals.

2. That Due to paucity of time, petitioner could not obtain certified copies of all Annexures.

3. The Petitioner undertakes to file the certified copies of the Annexures, as and when directed by this Hon’ble Court.

      In view of the facts and circumstances as stated above and in the interest of justice this Hon’ble Court may be pleased to: -

 (a) Exempt the Petitioner from filing certified copies of the Annexures; and

(b) Pass any such further order or direction as may be deemed fit, proper, necessary and expedient.

 Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Off: XXXXXXX

Mob-XXXXX

  

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

L.P.A No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

      APPLICATION FOR CONDONTION OF DELAY IN REFILING OF THE PETITION.

1.  That the Petitioner has filed the accompanied writ petition under Article of 226 of the Constitution of India challenging award dated XXXXX passed by presiding officer Labour Court.
   

2.  That the above captioned petition was filed on XXXXX before this Hon’ble Court vide diary no. XXXXX, and was received under objection. 
   

3.  That the earlier clerk of the counsel of the petitioner misplaced the above captioned writ petition in the office of counsel for the petitioner and did not informed the counsel about the status of the same. On search of the records of the office, it was transpired that the said petition has been under objection and the defects have not been cured by the clerk.
   

4.  That the delay in re-filing of the above captioned petition is unintentional and bonafide. 
   

      In view of the facts and circumstances as stated above and in the interest of justice this Hon’ble Court may be pleased to condone the delay of …… days in re-filing of the above captioned petition, in the interest of justice.

Date: XXXXXXXX

     Place: Advocate for Petitioner

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

L.P.A No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

      CERTIFICATE OF FILLING

It is certified that the documents accompanying the Writ Petition are the true copies of the record as filed and relied before the Ld. Court below. Complete tribunal record has been filed and No additional document other than the tribunal record has been filed.

Date: XXXXXXXXXXX

     Place: Advocate for Petitioner

      Mob-XXXXX

      Email - XXXX

 IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

**
AFFIDAVIT**

I, XXXX aged about XX years S/XXXXXX partner XXXXX Address: XXXX do hereby solemnly affirm and declare as under:

1. That I am an Partner of the Petitioner in the above captioned writ petition and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying application has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

DEPONENT

Verified at XXX on this day of XXXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT

  

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX ..…...Petitioner

XXXXX .........Respondent

**
AFFIDAVIT**

I, XXX aged about XXX years S/o XXXX partner of XXXX Address: XXXX, do hereby solemnly affirm and declare as under:

1. That I am an Partner of the Petitioner in the above captioned writ petition and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying application has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

DEPONENT

Verified at XXXX on this day of XXXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

**
AFFIDAVIT**

I, XXX aged about XXX years S/o XXXX partner of XXXX Address: XXXX, do hereby solemnly affirm and declare as under:

1. That I am the Partner of the Petitioner in the above-captioned writ petition and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying application has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

DEPONENT

Verified at XXXX on this day of XXXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT

      IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

W.P No: of 20….

IN THE MATTER OF:-

XXXXX …..…...Petitioner

XXXXX .........Respondent

**
AFFIDAVIT**

I XXXX aged about XX years S/o XXXX partner of XXX Address: do hereby solemnly affirm and declare as under:

1. That the deponent is the Partner of the Petitioner firm in the above captioned writ petition and well conversant with the facts and circumstances of the present case, and as such am competent to swear the present affidavit.

2. That the accompanying application has been drafted on my instructions. The contents thereof may be read as part and parcel of the present affidavit and the contents of the same have not been repeated herewith for the sake of brevity.

3. That the above statement is true and correct.

DEPONENT

Verified at XXX on this day of XXX that the contents of the above affidavit are true and correct to my personal knowledge and nothing material has been concealed.

DEPONENT