Letters Patent Appeal No.450 of 2009 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Letters Patent Appeal No.450 of 2009
Date of decision: 6.08.2009
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Dev Raj ...Appellant
Versus
M/s Ghai Rubber Industries and another ...Respondents
CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR.
HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. N.S.Bawa, Advocate for the appellant
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S.D.ANAND, J.
1. The appellant was non-suited by the Labour Court-cum-
Industrial Tribunal, Jalandhar (hereinafter referred to as “the Tribunal) on a
fact based finding that he had not been able to prove that he was in the
employment of the respondent company.
2. The learned Single Judge affirmed that finding by noticing that
there was complete want of evidence to prove the relationship of employer
and employee between the parties.
3. It is canvassed before us that the finding deserves interference
in view of the fact that it was for the respondent-management to have
produced the relevant employment record, the production whereof only
could enable the appellant to establish the averment that he was in the
Letters Patent Appeal No.450 of 2009 -2-
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employment of respondent-management.
4. We find the argument to be denuded of force.
5. It is apparent from the material obtaining on the record that the
appellant’s plea was supported by his solitary self-serving statement. He did
not, at all, make any endeavour to summon the record of employment from
the management. It would be farcical to argue that the onus lays upon the
management to produce the employment record. For ascertainment of the
facet of onus, we may advert to the pleadings of the parties. In the reply to
the claim statement, the management had raised a pure and simple plea that
the appellant had never been in its employment. Even when the appellant
stepped into witness box, as his own witness, the cross-examination on
behalf of the management was directed in the light of the plea
aforementioned. The appellant did not summon even the ESI record. The
least that the appellant could have done was to requisition the record which
could have clinched the issue in his favour. The present is, thus, evidently a
case of complete want of evidence to prove the plea of the appellant that he
was in the employment of the management. In affirming the view of the
Tribunal, the learned Single Judge had appropriately drawn sustenance
from Range Forest Officer Versus S.T.Hadimani, 2002 (3) Supreme
Court Cases 25, Rajasthan State Ganganagar Mills Limited Vs. State
of Rajasthan 2004 (8) S.C.C. 161 and R.M.Yalleti Versus The Assistant
Executive Engineer, 2006(1) S.C.C. 106.
6. Learned counsel, appearing on behalf of the appellant, has not
been able to invite our attention to any judicial pronouncement to the
contrary.
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7. In a nut shell, the onus was squarely upon the appellant to
prove the relationship of employee and employer before he could validly
pursue the plea to obtain ‘invalidation’ of his alleged termination. He could
discharge the onus by summoning whatever record he deemed appropriate
to buttress his self-serving statement in proof of the averment. For reasons
best known to him, the appellant rest content with his solitary statement and
did not take any steps to requisition any record from the employer or the
official authorities like the ESI to prove the plea of his being in the
employment of the respondent.
8. The finding recorded by the learned Single Judge is well
reasoned and cannot be faulted on any valid score. Apart therefrom, the
view obtained, in affirmation of the finding of the Tribunal that there is
want of material to prove that any relationship of employer and employee
exists between the parties to the reference, is based upon the judicial
pronouncements of the Apex Court in context of the onus.
8. We have, thus, no hesitation in dismissing the Letters Patent
Appeal and it is so ordered accordingly.
(S.D.ANAND)
JUDGE
August 06, 2009 ( J.S.KHEHAR)
Pka JUDGE