The burden of proof lies on the employer to disprove employment claims, and a writ petition cannot be dismissed solely for non-compliance of an order under Section 17-B of the ID Act.

Mukta Gupta, J.

1. On a dispute being raised by Surender Kumar against the management of M/s. Shresth International reference was made to the Labour Court on following terms:

“Whether the services of Surender Kumar have been terminated illegally and/or unjustifiably by the management and if so to what relief is he entitled and what directions are necessary in this respect?”

2. The claim of Surender Kumar was that he was working with the management as a Checker since January 01, 1990 on a salary of Rs. 1104/- per month. The management was being run by Shri Ratan Mani and his wife Smt. Kamini Devi with their head office at D-815, New Friends Colony. The management was also running a unit at premises No. A-68, Okhla Phase II, New Delhi which had been closed and the entire work had been shifted to head office. The management was not providing legal facilities to Surender Kumar such as bonus, leave, PF, ESI and nor maintaining proper record of service. Surender Kumar claimed that his services were terminated on June 13, 1991 without any notice contrary to the provisions of the Industrial Dispute Act (in short ‘the ID Act’). Further his wages for the month of May and June 1991 and over-time were also not paid.

3. Management contested the claim mainly asserting that it was not a partnership firm but a proprietorship firm being run by Mrs. Kamini Sadh and Surender Kumar was never an employee of the management in any capacity whatsoever.

4. As stated earlier it was the case of Surender Kumar that no legal facilities such as bonus, leave, PF, ESI was provided nor proper record was maintained. However, to prove his being employed with the management he exhibited gate passes issued to him by Shri Dubey supervisor of the management as Ex.WW-1/1, Ex.WW-1/2 and WW-1/2A respectively. The management witness admitted that a proprietorship firm was running from A-68, Okhla Phase II, New Delhi and D-815, New Friends Colony and did not refute the genuineness of gate passes Ex.WW-1/1, WW-1/2 and WW-1/2A. Surender Kumar also exhibited the report of the Labour Inspector Ex.WW-1/6 which fortified his claim. To rebut the evidence of Surender Kumar Management did not produce any document or evidence to show that Surender Kumar was never employed with it.

5. Thus the Labour Court drew a presumption in favour of the workman under Section 114(g) of the Indian Evidence Act and held that Surender Kumar was able to establish employer-employee relationship. Considering the fact that the termination was illegal the Labour Court directed reinstatement with back wages and that if arrears of back wages were not paid he would not be entitled to a simple interest of 12% per annum.

6. The writ petition filed by the management was dismissed by the learned Single Judge vide order dated June 03, 2010 resulting in the filing of the present appeal. The learned Single Judge dismissed the writ petition for the reason that despite directions to pay wages under Section 17-B ID Act to Surender Kumar, the management failed to do so even though the Letters Patent Appeal challenging the order dated August 10, 2009 directing management to pay arrears under Section 17-B ID Act within six weeks and future payment month by month was dismissed by the Division Bench. The learned Single Judge following the decision in M/s. Hindustan Carbide Pvt. Ltd. v. NCT of Delhi W.P. (C) No. 817/1999 decided on October 11, 2002 dismissed the writ petition for non-compliance of the order under Section 17-B ID Act.

7. Learned counsel for the appellant contends that the learned Single Judge could not have dismissed the writ petition for non-compliance of the order under Section 17-B ID Act and ought to have decided the writ petition on merits. Further on merits Surender Kumar was not able to establish employer-employee relationship as the onus to prove the same was on him and thus the award passed by the Labour Court is liable to be set aside.

8. The issue whether a writ petition of the management ag