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TMI Blog2022 (9) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction. Further, this court in its writ jurisdiction cannot reappraise the evidence and come to a different conclusion. Reliance is placed on Syed Yakoob vs KS Radhakrishnan Ors. [ 1963 (10) TMI 26 - SUPREME COURT] , Hari Shankar Sharma vs Artifical Limbs Manufacturing Corp. Ors. [ 2001 (11) TMI 1061 - SUPREME COURT] , Sadhu Ram vs DTC [ 1983 (8) TMI 313 - SUPREME COURT ], General Manager ONGC, Silchar vs ONGC Contractual Workers Union [ 2008 (5) TMI 758 - SUPREME COURT] . The law is well settled that the burden of proving the relationship of employer and employee lies on the workman. The inference regarding this relationship has to be inferred from facts and circumstances in each case and no general view can be taken in such matters. In the present case the award is well-reasoned and has been passed after duly considering and evaluating the evidence placed on record. Ld. Labour Court has rightly appreciated that the workman has failed to establish the relationship of employer-employee with the management. A bare perusal of the documents filed as evidence on behalf of the petitioner workman, which includes the various emails and the forms under 16A, do not, in any way, prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 1. The present writ petition has been moved by the petitioner workman impugning and seeking to set aside the order dated 07.06.2018 passed by Sh. Lokesh Kumar Sharma, Ld. Presiding Officer, Labour Court-XIX, Dwarka Courts, in L.I.R. No. 202/16, whereby the learned Labour Court held that the workman has failed to establish the existence of employer-employee relationship and therefore the question of illegal or unjustifiable termination did not arise and dismissed the statement of claim of the workman for being devoid of any merits. 2. Briefly stated the facts as alleged in the petition are that the petitioner workman joined the services of the respondent management as an Approved Part Time Foreign Language Linguist Guide in the year 2011 for around three years. Admittedly, petitioner was not issued any appointment letter. 3. The respondent management vide an email dated 25.03.2014, illegally terminated the services of the petitioner workman, without giving any notice, holding any inquiry, or assigning any valid reason. 4. Aggrieved, the petitioner workman sent a demand notice dated 01.09.2014 to the management, although no reply was received thereto. However, pursuant to receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint filed by one of the tourist s, on the basis of which, the workman was allegedly illegally terminated. c. Section 2(s), ID Act, entails an exhaustive definition of the term 'workman' and includes within its ambit any person, including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, and it is immaterial that the terms of employment are not reduced into writing. The definition of workmen does not distinguish between fulltime, part time, contractual employee. Thus it cannot be inferred, that only a person employed on regular/whole time basis is a workman and those employed on temporary/ part time or contract basis on fixed wages/ or as casual employee is not a workman. Reliance is placed on Devender Singh vs. Municipal Council Sanaur, 2011 (6) SCC 584 and Yashwant Singh Yadav Vs State of Rajasthan, 1989 (1) Raj LR 156. 10. It has been submitted that in view of the aforesaid contentions the petitioner is entitled to be reinstated back in service with retrospective effect, full back wages and other monetary benefits in continuity of his previous service and without any sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efits, PF, bonus or ESI. He was not paid regular amounts by way of salary or otherwise, which were being provided to its employees by the management. Ld. Counsel submits that the workman had admitted during his cross examination that he was working as a Guide on assignment basis and thus was not given any promotion or fixed salary from the Management and was getting payments only on assignment basis. 17. Ld. Counsel submits that finding of facts is based on evidence and material on record and the Petitioner is not competent to challenge the same by way of the writ jurisdiction of this Court. Thus, the present petition is frivolous, legally untenable and is liable to be dismissed at the very threshold. 18. Ld. Counsel submits that the Petitioner fell in the category of General Linguistic Guide which provided that the Regional Level Tourist Guide had to work as license Guide for at least 90 days in a year and they would be paid guide fees as revised from time to time by TGFI in consultation with IATO/TAAI representatives. The said guidelines clearly provide that the Regional Level Guides should not be regularly/ permanently employed in travel hospital industry, and they would not ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the award is perverse, illegal, if there is an error apparent on the face of the record, if there is impropriety in the decision-making process, or if the same is passed without jurisdiction. Further, this court in its writ jurisdiction cannot reappraise the evidence and come to a different conclusion. Reliance is placed on Syed Yakoob vs KS Radhakrishnan Ors. AIR 1964 SC 477, Hari Shankar Sharma vs Artifical Limbs Manufacturing Corp. Ors. (2002) 1 SCC 337, Sadhu Ram vs DTC (supra), General Manager ONGC, Silchar vs ONGC Contractual Workers Union (supra). 22. Further, relying on several judgements, this Court vide its judgement dated 21.07.2017 in D.D.A. v. Mool Chand, WP (C) 9468/2004, echoed the following principles: 28. Relying on the principles enunciated in the above decision, a catena of pronouncements of the Supreme Court, including Management of Madurantakam Cooperative Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193; P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54 and M.P State Electricity Board v. Jarina Bee, (2003), 6 SSC 141, followed, which may be regarded as having laid down, authoritatively, the following principles: i. The Labo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction conferred upon it. 24. The law is well settled that the burden of proving the relationship of employer and employee lies on the workman. The inference regarding this relationship has to be inferred from facts and circumstances in each case and no general view can be taken in such matters. 25. In the present case the award is well-reasoned and has been passed after duly considering and evaluating the evidence placed on record. Ld. Labour Court has rightly appreciated that the workman has failed to establish the relationship of employer-employee with the management. A bare perusal of the documents filed as evidence on behalf of the petitioner workman, which includes the various emails and the forms under 16A, do not, in any way, prove that there existed any relationship of employer employee between the parties. The emails show mere correspondence and the Form 16A categorically reflects that TDS was deducted by the Management in respect of payments made to the petitioner under the head of payments made to contractors and sub-contractors‟, thereby disqualifying the petitioner to fall within the definition of workman as enumerated under Section 2(s) of ID Act. 26. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent management. 30. Moreover, the work experience of the petitioner [Annexure P-19] issued by the management, clearly reflects that the petitioner workman was working as a freelance German speaking guide with the management from 2013 14, on assignment basis and was given payment on assignment basis as well. 31. Freelance as per the term itself implies a person who acts independently without being affiliated with or authorized by an organization and is distinguishable from part-time, full-time or contractual employees. Freelancing thus enables a person to work for himself and multiple other employees and enables unfettered submission of work to many potential buyers. For eg. a writer who submits work to many publishers, a journalist working for several channels, a tour guide etc. 32. Freelancer or freelancing thus are terms currently used to mean a person who is self-employed or an independent contractor in the business of selling their services and skills to different employers for a specified time period. Etymologically, freelance has derived from the words - Free‟ a Germanic word which means to love‟, and lance‟ which is akin to the French word meaning to launch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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