JUDGMENT
Anil Kumar, J.
1. The petitioner has impugned the award dated 9th April, 2003 holding that the petitioner has failed to prove that he was an employee of the Management and consequently denying any relief as prayed by him.
2. Brief facts to comprehend the controversies between the parties are that the petitioner alleged that he was employed as a driver by the respondent/Management at the salary of Rs. 1,000/- per month. He was terminated on 18th March, 1989. Before termination he was not even given the salary of February 1989. The petitioner contended that he was terminated because he was not provided any legal facilities such as appointment letters, attendance card, overtime, leave, etc. and when he demanded the same his services were terminated. The petitioner asserted that he is unemployed since the date of his termination and his termination is bad as no notice under Section 25(F) was given to the petitioner before his termination.
3. The respondent contested the claim of the petitioner contending that there is no relationship of employer and the employee between them, as the petitioner was not employed by the respondent as a driver. It was contended that the management is a partnership firm and one of the partners had been employing the petitioner as driver to drive the car on specific dates and the amounts were paid by the partner ranging from Rs. 45 to Rs. 50 for taking his services on specific days.
4. The parties led evidence in support of their pleas and contentions before the Labor Court. The workman proved challans, Exh.WW1/1 to WW1/5 in respect of vehicle No. DEB 1149 and Ex.WW1/6 in respect of vehicle No. DDQ 9288. Relying on the cross-examination of the petitioner and the statement of the partner of the respondent firm, it has been held by the Labor Court that there is no relationship of employer and the employee between the petitioner and the respondent.
5. The award of the Labor Court is impugned by the petitioner in the present petition under Article 226 of the Constitution of India. I have heard the counsel for the parties and have also perused the record of the Labor Court including pleadings, documents and the evidence of the parties.
6. This is no more res integra that while exercising its powers of judicial review under Article 226 of the Constitution of India this Court is not to re-appreciate the evidence. It is a settled position of law that in exercise of jurisdiction under Article 226 of the Constitution of India, the Court does not interfere with factual findings of the lower courts and restrain itself from re-appreciating evidence while exercising powers of judicial review. Reliance for this proposition can be placed on the judgment of the Supreme Court, Government of A.P. and Ors. v. Mohd. Nasrullah Khan reported as . Reliance may also be placed on the following judgments rendered by the Supreme Court and this Court concerning the scope of judicial review in a writ petition, Harbans Lal v. Jagmohan Saran ; B.C. Chaturvedi v. Union of India ; Indian Overseas Bank v. I.O.B. staff Canteen Workers’ Union AIR 2000 SC 1508; Municipal Corporation of Delhi v. Asha Ram and Anr. and Filmistan Exhibitors Ltd. v. N.C.T. Secy. Labour and Ors. 131 (2006) DLT. In all these above judgments, it has been held that a writ court should refrain from interfering with the orders of an inferior tribunal or subordinate court unless it suffers from an error of jurisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law.
7. The objective of judicial review is to ascertain that a person received a fair treatment and objective is not to re-appreciate the entire pleas and evidence and draw inferences again. The Apex Court in B.C. Chaturvedi v. Union of India at page 759 in para 12 had held as under:
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/ Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
8. The workman in his cross-examination has admitted that about 20 to 25 persons were working with the Management and the persons other than the petitioner were paid wages against signatures in their register and they were given weekly leaves also whereas the petitioner was not given the weekly off nor was paid against signature in a register. He also admitted in his cross- examination that appointment letters were issued to other workman but not to the petitioner and for not issuing the appointment letter or of not giving of weekly off to the petitioner, no complaints were made in writing either to the management or to the authorities by the petitioner. The petitioner also admitted that no application under Section 33C(2) or any proceeding for payment of wages for February 89 and March 89 was filed by the petitioner.
9. The management admitted that the Car No. DEB 1149 was the car of the partnership. The petitioner volunteered in reply to a suggestion that the firm has another Fiat car bearing No. DDQ 9228. He also admitted that he does not know as to who is the owner of this other car and he also admitted that one car of the partnership was used, at times, by Shri Krishan Kumar, partner, of the firm. The partner of the management firm, Shri Krishan Kumar, in his deposition had deposed that no monthly salary was fixed for the petitioner and he used to be paid on daily basis as and when he used to be hired by him and he was paid Rs. 45/- or Rs. 50/- per day. It was categorically asserted that no record was maintained for payment made to the petitioner by him as a partner as he was employing him in his individual capacity though he was using the car of the partnership.
10. The said witness of the management was given suggestion about the vehicle No. DDQ 9228 being owned by the respondent firm, however, no such plea was taken by the claimant in his claim petition. The said witness also denied that the said vehicle was driven as a commercial vehicle and it was contended that no such plea was taken on behalf of the petitioner in the claim petition. It was also deposed by the petitioner that the goods were transported by the goods carrier contrary to any of his pleas in the claim petition.
11. Learned Counsel for the petitioner has emphasized on the fact that in the cross-examination of the partner of the management firm, he was asked to produce the attendance register as well as payment of wages register, however, the same have not been produced and consequently adverse inference should be taken against the respondent. Perusal of statement of the petitioner reflects that the petitioner had admitted that in the attendance register his name was not entered and the salary was given to all other employees except him by taking their signatures in the register. Since the petitioner himself admitted that his name was not in the salary register because his signatures were not taken nor any employment letter was given to him, on non production of these documents demanded by the petitioner in the cross examination of the witness, nothing can be established and as such no adverse inference can be drawn against the respondent. Despite the admission on the part of the petitioner, if the petitioner wanted any document to be produced by the respondent, so that in case those documents were not produced by the respondent, and an adverse inference could be taken, the petitioner should have moved an appropriate application seeking discovery and production of documents. No adverse inference could be taken against the respondents because these pleas about another car being used as goods carrier and that the name of the petitioner was entered in the employer’s register were not taken specifically. Merely on the basis of a suggestion given in the cross-examination to produce the documents as claimed by the petitioner, no adverse inference can be taken against the respondent. In the circumstances the award of the Labor Court cannot be faulted on the grounds taken by the petitioner. In any case there is no perversity or manifest error in the award dated 9th April, 2003. On the basis of the photocopies of the challans produced by the petitioner, the inference by the Labor Court that there is no relationship of employer and the employee cannot be faulted.
12. The Labor court has also relied on the different stands taken by the petitioner. In the notice dated 26th August, 1989, it is stated on behalf of the petitioner that he was Mistri. He has admitted in his cross-examination that before sending the notice it was read over and explained to him whereas in another notice dated 3rd July, 1989 sent on behalf of the petitioner by the Union, he has been described as a driver. The Labor Court has relied on the statement of the partner of the management that he was employing the petitioner on day-to-day basis according to his requirement to have a driver as he was living in a congested area where there was no place to park and he did not require the car every day. Taking all these facts into consideration, a probable inference has been drawn that there is no relationship of employer and employee between the petitioner and the respondent.
13. The argument by the petitioner that he was driving the vehicle in order to carry the goods has been dis-believed as neither there was any plea nor any reliable evidence on the part of the petitioner. If the vehicle No. 9228 is not owned by the respondent, it was for the petitioner to summon the record of the registering authority to prove the same in order to establish that the versions of the respondent is not correct.
14. The burden to prove that there was a relationship of employer and employee was on the petitioner. The petitioner has only proved copies of the challans which do not show that petitioner was an employee of the respondent firm. In view of the categorical admission by the petitioner that he was not paid any amount by taking his signatures in the register and he was not issued any appointment letter though others had been issued appointment letters. What has been established is that the petitioner was not in the regular employment of the respondent.
15. In the facts and circumstances, the inference drawn by the Labor Court cannot be termed perverse or suffering from any manifest error. There is no denial of principle of natural justice in the facts and circumstances. This Court in exercise of its writ jurisdiction is not to substitute its inference, in case they are different, with the probable inferences drawn by the Labor Court.
16. Learned Counsel for the petitioner has also relied on , Bank of Baroda v. Ghemarbhai Harjibhai Rabari to contend that though the burden of proof is on the petitioner that he was in employment of the management, however, decree of such proof so required vary from case to case. According to the petitioner, he has discharged his burden by producing the copies of challans. In the case relied on by the petitioner, the workman had produced the vouchers of his wages which vouchers were admitted to be debited in the account of the employer and in the circumstances it was held that the primary burden had been discharged by the employee. In contradistinction to the present case the petitioner failed to discharge his burden as on the basis of alleged copies of traffic challans, it could not be inferred that he was in the regular employment of the respondent/management. No other cogent evidence has been produced by the petitioners showing that there was relationship of employer and employee between the petitioner and the respondent. The case relied on by the petitioner is apparently distinguishable and on the basis of ratio of the same, no inference can be drawn in favor of the petitioner.
17. For the foregoing reasons, this Court does not find any perversity or manifest error in the award dated 9th April, 2003 so as to entail interference under Article 226 of the Constitution of India. The writ petition is, therefore, without any merit and it is dismissed. Parties are however left to bear their own costs.