The burden of proof for establishing an employment relationship lies with the party making the claim, and the Labour Court must decide based on the evidence presented.

VINOD GOEL, J.

1. In this writ petition, the petitioner has impugned the Award dated 29.10.2014 passed in ID No. 45/2014 (Old ID No. 738/2013) by which the learned Presiding Officer, Labour Court, Karkardooma Courts, Delhi (hereinafter referred to as "Industrial Adjudicator") answered the reference dated 28.10.2013 against him.

2. The brief facts leading to filing of the present writ petition are that the Secretary (Labour), Govt. of NCT, Delhi vide order No. No. F-24 (516)Lab./SD/2013/21166 dated 28.10.2013 referred the industrial disputes between the parties for adjudication to the Labour Court on the following terms:-

“Whether the services of Sh. Babu Ram S/o Sh. Ram Bharose has 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?”

3. In his statement of claim the petitioner claimed that he was employed as Munim in the month of January, 2008 by the respondent and his last drawn salary was Rs. 6,000/- per month. The respondent did not provide him appointment letter, leave book, weekly and yearly leave, overtime, conveyance allowance, bonus, identity card etc. and when he demanded these facilities respondent terminated his services on 01.01.2010 in violation of Section 25F of Industrial Disputes Act, 1947 (in short "ID Act"). The respondent also did not pay him his salary for the period from 01.04.2009 to 31.12.2009. He sent a demand notice through the Union demanding the earned wages and consequential benefits.

4. The respondent, in its written statement, had denied the claim of the petitioner and pleaded that there was no relationship of employer and employee between them and therefore the question of reinstatement of the petitioner in service does not arise. The respondent had also denied that the petitioner was appointed as Munim or his last salary was Rs. 6,000/- per month.

5. In order to prove his claim, the petitioner examined himself as WW-1. On the other hand, the respondent did not adduce any evidence.

6. After hearing both the parties, the Industrial Adjudicator held that the workman had failed to prove his relationship with the respondent and as there was no relationship of employer and employee between the parties, the question of his illegal termination from the services did not arise and answered the reference against the petitioner.

7. It is argued by the learned counsel for the petitioner that along with his rejoinder the workman has placed on record Photostat copy of the attendance register maintained by the respondent reflecting the name of the petitioner having worked with M/s. Pawan Furniture and Tent House for the period from 21st January, 2009 to 7th December, 2009 which reflects that the petitioner was working with the respondent firm. The learned counsel for the petitioner admitted that this copy of the alleged attendance register was never tendered in evidence. It is not on the Format Register and just a copy of simple line register without any print name of respondent. It does not bear the signature or stamp of the respondent. It is also not explained as to in whose handwriting this was prepared. The petitioner has not taken any step before the Industrial Adjudicator to summon the attendance register through the concerned officer/official.

8. It is well settled principle of law that the person, who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this regard, the Hon’ble Supreme Court in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. vs. State of T.N. and Others, (2004) 3 SCC 514 has approved the judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Para 48 to 50 of the said judgment reads as under:-

“48. In N.C. John vs. Secy. Thodupuzha Taluk Shop and Commercial Establi