# M/s Ruby International Annapurna Metal, Moradabad & others v. Davendra Singh Plaintiff/

- **Citation:** (2008) 3 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-25
- **Case number:** First Appeal From Order No. 1579 of 2008
- **Bench:** Amitava Lala, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ruby-international-annapurna-metal-moradabad-others-v-davendra-singh-41255
- **Pages:** 6

## Headnote

Act
1923Appeal
against
award
passed
by
Commissioner-on
ground
of
no
relationship of master and servantinspite
of
direction-employer
not
produced the record of attendance as
well as salary register of the relevant
time-contention about burden of proof
primarily lie with workman-held-Court
can look any document at any point of
time-section 23 of the Act empowers to
produce such document being custodian
of the same-burden of proof is static but
onus is flexible-if employer tries to avoid
the Court-adverse inference can be
drawn-award fully justified requires no
interference.
Held: Para 12

According to us, when burden of proof is
static, onus is flexible. Therefore, as and
when the Commissioner called upon
certain documents to be produced from
the real custodian of the same to come
to an appropriate conclusion refusal
thereof by the party can not be said to be
proper. A party is bound by the direction
of the Court to assist it for the purpose
of ascertaining the truth. Had the master
complied with the direction and the
servant called upon to prove but failed, it
could have been scenario comparable
with referred judgements. In this case,
the substantial question is not the
burden of proof but shifting of onus to
dispel the cloud when the Court called
upon to satisfy itself to come to an
appropriate finding. If one party tries to
avoid the Court it is entitled to draw an
adverse inference.
Case law discussed:
AIR 2006 SC 110; AIR 2004 SC 1639; 1976
Lab. I.C. 202; AIR 2002 SC 1147; AIR 2004 SC
4791; AIR 2006 SC 678.

## Text

3 All] M/s Ruby International Annapurna Metal & others V. Devendra Singh
885
maintained. The balance salary for the
suspension period of the petitioner shall
be paid within a period of four months
from the date a certified copy of this order
is
produced
before
the
concerned
respondent.

On the facts and in the circumstances
of the case, there will be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal From Order No. 1579 of 2008

M/s
Ruby
International
Annapurna
Metal, Moradabad & others ...Appellants
Versus
Davendra Singh ...Plaintiff/Opposite Party

Counsel for the Appellants:
Sri. R.K. Awasthi.

Counsel for the Opposite Party:
Sri. R.R. Khan.

Workmen
Compensation
Act
1923Appeal
against
award
passed
by
Commissioner-on
ground
of
no
relationship of master and servantinspite
of
direction-employer
not
produced the record of attendance as
well as salary register of the relevant
time-contention about burden of proof
primarily lie with workman-held-Court
can look any document at any point of
time-section 23 of the Act empowers to
produce such document being custodian
of the same-burden of proof is static but
onus is flexible-if employer tries to avoid
the Court-adverse inference can be
drawn-award fully justified requires no
interference.
Held: Para 12

According to us, when burden of proof is
static, onus is flexible. Therefore, as and
when the Commissioner called upon
certain documents to be produced from
the real custodian of the same to come
to an appropriate conclusion refusal
thereof by the party can not be said to be
proper. A party is bound by the direction
of the Court to assist it for the purpose
of ascertaining the truth. Had the master
complied with the direction and the
servant called upon to prove but failed, it
could have been scenario comparable
with referred judgements. In this case,
the substantial question is not the
burden of proof but shifting of onus to
dispel the cloud when the Court called
upon to satisfy itself to come to an
appropriate finding. If one party tries to
avoid the Court it is entitled to draw an
adverse inference.
Case law discussed:
AIR 2006 SC 110; AIR 2004 SC 1639; 1976
Lab. I.C. 202; AIR 2002 SC 1147; AIR 2004 SC
4791; AIR 2006 SC 678.

(Delivered by Hon'ble Amitava Lata, J.)

1. This is an appeal of the
defendants, appellants herein, from the
judgment and order dated 29th March,
2008
passed
by
the
concerned
Commissioner,
Moradabad,
appointed
under the Workmen's Compensation Act,
1923
(hereinafter
called
as
the
'Commissioner') awarding a sum of
Rs.1,87,182/-
on
account
of
injury
sustained by the claimant/respondent
herein, along with penalty of Rs.93,000/-.
Learned Counsel appearing for both the
contesting parties agreed about hearing of
the appeal on the informal papers at the
stage of admission, accordingly the Court
has proceeded.

2. The question arose before the
Commissioner
about
master-servant
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
886
relationship
between
the
appellantsemployer and the respondent-employee,
who became injured by the cause of
accident. The claimant asserted that he
was under the employment of the
appellants for last ten years, which the
appellants
have
refused.
In
such
circumstances, the Commissioner called
upon,
the
appellants
to
produce
attendance registers and salary registers of
the years 2005 and 2006 along with those
of the relevant year, but the appellants
avoided the same and produced the
document only for the relevant period to
establish that on the date and time of the
accident the injured/claimant was not in
the
employment.
The
Commissioner
disbelieved the statement of the appellants
based on the solitary document and
discarded
their
conduct
for
nonproduction of the documents, and drew an
adverse inference.

3. By preferring this appeal, the
appellants contended that onus to prove
employment is primarily lying with the
employee
not
with
the
employer.
Therefore, they are not supposed to
produce the documents, as such their
refusal to produce the documents is
appropriate and no adverse inference can
be drawn by the Commissioner.

4. Factually, the claimant was
working as a mechanic of a machine,
which
was
suddenly
stopped
from
functioning. The claimant became curious
to know the cause of non-functioning in
order to repair it, when the machine
suddenly started functioning but he got no
opportunity to escape and met with the
accident, which caused loss of his four
fingers. The Commissioner determined
the disability and loss of earning on the
basis of materials available before him
and arrived at the aforesaid amount of
compensation. However, the quantum of
compensation
is
not
the
question
hereunder
but
the
master-servant
relationship.

5. Learned Counsel appearing for
the
appellants
relied
upon
various
judgements in this regard. Relying upon
AIR 2006 SC 110 (Surendranagar
District
Panchayat
Vs.
Dahyabhai
Amarsinh) he contended that it is
necessary for the workman to produce the
relevant material to prove that he has
actually worked with the employer for not
less than 240 days during the period
twelve calendar months preceding the
date of termination. Since no proof of
receipt of salary or wages or any record or
order in this regard was produced; no coworker
was
examined;
muster
roll
produced by the employer has not been
contradicted, it is improbable that the
workman, who claimed to have worked
with the employer for such a long period,
would not possess any documentary
evidence
to
prove
nature
of
his
engagement and the period of work he
had undertaken with his employer.
Ultimately, it has been held by the
Supreme Court that the Courts below
have wrongly drawn an adverse inference
for non-production of the records for ten
years by the employer. He has also relied
upon AIR 2004 SC 1639 (Workmen of
Nilgiri Co-op. Mkt . Society Ltd. Vs.
State of Tamil Nadu and others), where
interpretation of burden of proof is given,
as follows:

"47. It is a 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.
3 All] M/s Ruby International Annapurna Metal & others V. Devendra Singh
887
48. In N.C. John v. Secretary,
Thodupuzha Taluk Shop and Commercial
Establishment Workers' Union and others
(1973 Lab IC 398), the Kerala High Courl
held:
"The burden of proof being on the
workmen to establish the employeremployee
relationship
an
adverse
inference cannot be drawn against the
employer that if he were to produce books
of accounts they would have proved
employer-employee relationship."
49. In Swapan Das Gupta and others
v. The First Labour Court of West Bengal
and others (1976 Lab IC 202) it has been
held:
"Where a person asserts that he was a
workman of the Company, and it is
denied by the Company, it is for him to
prove the fact. It is not for the Company
to prove that he was not an employee of
the Company but of some other person:"

6. To get the persuasive value, the
Supreme Court relied upon a Single
Bench judgement of the Calcutta High
Court reported in 1976 Lab. I.C. 202
(Swapan Das Gupta and others Vs. The
First Labour Court of West Bengal and
others). In AIR 2002 SC 1147 (Range
Forest Officer Vs. S.T. Hadimani) the
Supreme Court held that filing of an
affidavit is only his own statement in his
favour and that can not be regarded as
sufficient evidence for any Court or
tribunal to come to the conclusion that a
workman had, in fact, worked for 240
days in a year without proof of receipt of
salary or wages for 240 days or order or
record of appointment or engagement for
this period. In AIR 2004 SC 4791 (M.P.
Electricity Board Vs. Hariram etc.) the
Court considered the nature of work and
held that employment of people in that
local area for the limited job can not be
construed as an employment for a
continuous or regular period to work.
Therefore, the respondents, in such
referred case, can not claim either
permanency or regularisation nor could he
claim benefit of completion of 240 days
of continuous work in the given year.

7. All the aforesaid cases were
discussed from the point of view of the
Industrial Disputes Act, 1947 to establish
perpetuity of service but not from the
point
of
view
of
the
Workmen's
Compensation Act, 1923 (hereinafter
called as the 'Act, 1923') to give one time
compensation. Therefore, Court's anxiety
is appreciable. But other appreciable thing
is although the Workmen's Compensation
Act is part of labour laws but basically it
is a beneficial piece of legislation. A
beneficial piece of legislation can not be
looked by the eyes of industrial disputes.
Equity plays a predominant role to arrive
at 'just' compensation in summary manner
to give accidental benefit to one who
sustained injury or became sufferer due to
cause of death. There is no scope of rigid
applicability of the law of evidence
irrespective of the factum that both the
employer and employee are standing on
an unequal bargaining position. From the
statement of objects and reasons of the
Act, 1923 we find that the growing
complexity of industry in this country,
with the increasing use of machinery and
consequent danger to workmen, along
with the comparative poverty of the
workmen themselves, renders it advisable
that they should be protected, as far as
possible from hardship arising from
accidents. A consistent endeavour has
been made to give as little opportunity
for disputes as possible. Throughout the
Bill in the definitions adopted the scales
selected, and the exceptions permitted
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
888
the great aim has been precision in
order that, in as few cases as possible
should the validity of a claim for
compensation or the amount of that
claim be open to doubt. At the same
time, on the unanimous recommendation
of the Committee, provision has been
made for special Tribunal to deal cheaply
and expeditiously with any disputes that
may arise, and generally to assist the
parties in a manner which is not possible
for
the
ordinary
Civil
Courts.
Therefore, the aims and objects of the
Act, 1923 are more open to pay the
compensation to an employee ignoring
the procedural difficulties than to refuse.

8. It is also to be considered from a
different outlook i.e. social point of view.
In a developing country like us huge
number of unemployed are standing on
the queue, therefore, there is a chance of
exploitation. In the services particularly
which are of private nature, small units,
unorganised sectors, domestic, it is very
difficult for an employee to seek any
document at the cost of employment.
There is always apprehension of losing
service. In AIR 2006 SC 678 (Central
Mine Planning and Design Institute
Ltd. Vs. Ramu Pasi and another) we
find although there was no definite
material adduced to show that the
claimant was employed in casual for the
purpose of employer's trade or business
yet, considering the small quantum
awarded, a direction was given to pay the
same. Therefore, equity played a perfect
role in making such decision keeping eyes
open to the objects and reasons of the Act,
1923, which should not be overlooked by
us.

9. That apart, a further pertinent
point before us is who is the custodian of
the documents i.e. attendance and salary
registers etc. to show that such person was
not working under the continuance
employment of the appellants, -obviously
the
master.
Therefore,
before
any
evidence to be leel, discovery and
inspection of the documents are part of
the procedure if it is rigidly followed. The
appellants have conveniently avoided
production of such documents and only
produced the register of the year 2006-07
to establish that the person concerned had
not attended his duty on the relevant date
and time and/or worked casually. Court
can look into any document at any point
of time. Section 23 of the Act, 1923
clearly gives power to the Commissioner
to compel the production of documents
and material objects. If one avoids any
document from its production even being
custodian,
it
will
obviously
create
suspicion in the mind of the Court. The
Court may think that the document for the
date and time is manufactured to avoid
the claim, therefore, it is proper to look
earlier similar documents chronologically
.for the sake of continuity to dispel the
cloud. Having not so, cloud will remain.

As per P. Ramanatha Aiyar's The
Law Lexicon, Second Edition 1997,
meaning of 'custody' is as follows:
"'Custody'
means
the
actual,
physical, or corporeal holding of a
document regardless of the right to its
possession, for example, a holding of a
document by a party as servant or agent of
the true owner. B. v. B. (1979) 1 All ER
801, 805(Famd.)"

10. As per Black's Law Dictionary,
6th Edition, 'custody' means "the care
and control of a thing or person". Even
under Order XI of the Code of Civil
Procedure (hereinafter called as 'C.P.C.')
3 All] M/s Ruby International Annapurna Metal & others V. Devendra Singh
889
custodian of documents will be directed
for discovery by interrogatories under
Rule 1 therein. An application for
discovery of documents can be made
under Rule 12 therein. Protection of the
documents can be made under Rule 14.
As per Rule 16, inspection can be made.
Notice to produce the documents can be
given under Rule 16. Order of inspection
tan be made under Rule 18 therein. Under
Section 23 therein the Commissioner shall
have the powers of the Civil Court under
the C.P.C. for the purpose ot taking
evidence on oath and/or enforcing the
attendance of witnesses and compel a
party for production of the documents
and
material
objects.
Even
under
Section 165 of the Indian Evidence Act,
1872 (hereinafter in short called as the
'Evidence Act') a Judge has power to put
question or order the production of any
document in order to discover or to obtain
proper proof of relevant facts, ask any
question he pleases, in any form, at any
time, of any witness, or of the parties,
about any fact relevant or irrelevant;
and may order the production of the
documents or things; and neither the
parties nor their agents shall be entitled
to make any objection to any such
question or order. Only after discovery
and inspection at the time of witness
action Court will consider burden of proof
and discharge of onus. Therefore, it is far
to say. that a party can refuse the Court
from
producing
documents
for
its
satisfaction.

11. We find from Sarkar's Law of
Evidence, Sixteenth Edition 2007, page
1404, "Proper Custody", as follows:

"Proper
Custody".-[Proof
and
Effect of].-Proper custody has been
explained thus by TINDAL CJ.in Bishop
of Meath v. Marquis of Winchester, 3
Bing NC 198 p 200:-

"Documents found in a place in
which, and under the care of person with
whom such paper might naturally and
reasonably be expected to be found, are
precisely
the
custody
which
gives
authenticity to documents found within it;
for it is not necessary that they should be
found in the best and most proper place of
deposit. If documents continued in such
custody, there never would be any
question as to their authenticity; but it is
when documents are found in other than
the proper place of deposit, that the
investigation commences, whether it was
reasonable
and
natural
under
the
circumstances in the particular case, to
expect that they should have been in the
place where they are actually found; for it
is obvious, that, while there can be only
one
place.
of
deposit
strictly
and
absolutely proper, there may be various
and many that are reasonable and
probable, though differing in degree;
some being more so, some less; and in
those
cases
the
proposition
to
be
determined is, whether the actual custody
is so reasonably and properly to be
accounted for, that it impresses the mind
with the conviction that the instrument
found in such custody must be genuine.
That such is the character and description
of the custody, which is held sufficiently
genuine, to render a document admissible
appears from all the cases."

12. According to us, when burden of
proof is static, onus is flexible. Therefore,
as and when the Commissioner called
upon certain documents to be produced
from the real custodian of the same to
come to an appropriate conclusion refusal
thereof by the party can not be said to be
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
890
proper. A party is bound by the direction
of the Court to assist it for the purpose of
ascertaining the truth. Had the master
complied with the direction and the
servant called upon to prove but failed, it
could have been scenario comparable
with referred judgements. In this case, the
substantial question is not the burden of
proof but shifting of onus to dispel the
cloud when the Court called upon to
satisfy itself to come to an appropriate
finding. If one party tries to avoid the
Court it is entitled to draw an adverse
inference.

13. Thus, in totality we do not find
any cogent reason to interfere with the
judgement and order impugned in this
appeal. Hence, the appeal is dismissed
even at the stage of admission, however,
without imposing any cost.

14. The amount deposited by the
appellants
as
lying
with
the
Commissioner concerned will be released
in favour of the claimant as early as
possible. Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 40620 of 2008

Dr. R.S. Khare

...Petitioner
Versus
Om Narain Gupta
 ...Respondents

Counsel for the Petitioner:
Sri. Rajesh Dwivedi.

Counsel for the Respondents:
Sri. Nikhil Kumar.

Constitution of India-Article 226-Rent
appeal-appellate Court granting stay of
eviction-subject to payment of enhanced
rent at the rate of Rs.3,000/-per monthagainst that writ petition dismissed-in
the meantime as per verdict of Apex
Court-tenant
filed
modificationapplication and got stayed the enhanced
rate of rent-landlord's recall application
bringing
true
position
about
concealment of facts by the tenantappellate Court restored earlier order by
imposing Rs.500/- cost-held-too much
nominal but on request of expediting the
hearing of appeal-lower Court is directed
to decide appeal very expeditiously-any
adjournment should not be subject to
payment of Rs.500/-petition dismissed.

Held: Para 5

Learned counsel for the tenant petitioner
states that hearing of appeal may be
expedited. Accordingly, it is directed that
appeal
must
be
decided
very
expeditiously.
Absolutely
no
unnecessary adjournment shall be granted
to any of the parties. If the court below
is inclined to grant any adjournment in
any form to any of the parties, then it
shall be on very heavy cost, which shall
not
be
less
than
Rs.500/-
per
adjournment.
Case law discussed:
2008 (1) A.R.C. 628, 2005 (1) SCC 705,
2008(2)ARC 579.

(Delivered by Hon'ble S. U. Khan, J.)

1. Tenant-petitioner is behaving in a
most un:reasonable manner. In an appeal
(Rent appeal no.30 of 2007) Additional
District Judge Court No.13, Kanpur
Nagar granted conditional stay order
staying eviction on the condition that
tenant would pay Rs.3,000/- per month to
the landlord during pendency of appeal.
Said order was passed on 25.9.2007.
Against the said order writ petition no.
59828 of 2007 was filed in this Court