Delhi District Court
Mukesh Devi vs Maharaja Agarsen Hospital on 8 May, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-001014-2012
Ref. No. F-3(376)/12/Ref./WD/LAB/1585 Dated 07.11.2012
LIR No. 3882/2016 (Old no. 348/2012)
Smt. Mukesh Devi W/o Sh. Vijay Pal
R/o House No. 95, Village Tilankpour Kotla,
Post Najafgarh, New Delhi-110043. .....Workman
VERSUS
1. M/s. Maharaja Agarsen Hospital
Rohtak Road, West Punjab Bagh,
New Delhi-110026.
2. M/s. Ujjwal Enterprises
18/611, Joshi Road, Karol Bagh,
New Delhi-110005. ....Managements
Date of Institution of the case : 24.11.2012
Date on which Award is passed : 08.05.2024
JUDGMENT:
1. By this judgment, I will dispose off the reference dated 07.11.2012 received from the office of Deputy Labour Commissioner, District West, Govt. of NCT of Delhi U/s 10(1)C & 12(5) of Industrial Disputes Act, 1947 vide order no. F- 3(376)/12/Ref./WD/LAB/1585 Dated 07.11.2012, in the following terms :-
"Whether employer employee relationship existed between Smt. Mukesh Devi w/o Sh. Vijay Pal and the management of M/s. Maharaja Agarsen Hospital or LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.Judgment dated 08.05.2024 Page 1 of 27
the management of M/s. Ujjwal Enterprises and if so whether her services have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is she entitled and what directions are necessary in this respect?"
2. The aforesaid reference was received by this Court on 24.11.2012, whereafter, the statement of claim was filed by the workman on 15.01.2013. Brief case of the claimant as per the statement of claim is that she had joined the services of the management no. 1 on 10.11.2001 as Ward Aaya and had been working with the management till 22.11.2008, against last drawn wages of Rs. 3,640/- per month, on which date, her services were illegally terminated by the management without any charge-sheet or domestic inquiry in violation of provisions of the Industrial Disputes Act, 1947, since the workman had refused to disassociate herself from the activities of the Maharaja Agrasen Hospital Employees Union as required by the management after the union has raised two industrial disputes claiming regularization of services of temporary/casual/contractual workmen.
3. It is further the case of the workman that neither any notice nor any pay in lieu of the notice was ever given/paid to the workman prior to termination of her services and many workmen, who were junior to the claimant, were retained in service by the management while terminating the services of the claimant. Since, according to workman, the management has failed to reinstate the claimant despite receipt of demand notices dated 23.11.2008 and 05.09.2011 and conciliation proceedings LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 2 of 27initiated by the workman before the Assistant Labour Commissioner have failed, the workman was constrained to approach this Court with the present statement of claim seeking her reinstatement with either of the managements with full back wages and continuity of service and/or other consequential benefits.
4. It is further the case of workman that she is not aware of any contract between management no. 1 with any contractor and if any contract between management no. 1 and 2 exists, the same is sham and bogus to camouflage the employee-employer relationship between the claimant and the management no. 1. The workman has categorically denied the existence of any employee-employer relationship between her and management no. 2 and has stated that management no. 2 had been made a party only due to abundant caution.
5. Written statement to the claim of the workman was filed on behalf of management no. 1 on 05.04.2013, wherein, management no. 1 has categorically denied the existence of any employer-employee relationship between management no. 1 and claimant. It is further the case of management no. 1 that the work of housekeeping in the hospital, including that of Ward Aaya, had always been entrusted by management no. 1 to independent contractors to be performed by the persons directly employed by them, whose wages were also paid by them and their supervision, control and discipline was also the responsibility of the independent contractors. It is further the case of the management LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 3 of 27no. 1 that the claimant had been employed by management no. 2, who was an independent contractor of management no. 1, to provide housekeeping services including the services of Ward Aayas. It is further the case of the management no. 1 that the dispute regarding regularization of services of workmen, who were working on daily wages/contractual/casual basis, had already been decided by the Industrial Tribunal No.1 vide its Award dated 12.01.2010 in favour of management no. 1 while holding that the Contract Labour could raise a separate industrial dispute, in case, they claim that the Contract Labour System was sham and bogus.
6. It is further submitted by management no. 1 that the Constitution of Maharaja Agrasen Hospital Employees Union does not permit a person, who is not directly employed by management no. 1 to become a member of the union and hence, the claimant cannot claim herself to be a member of the aforesaid union. It is further the case of management no. 1 that since, the claimant was never employed by management no. 1, there does not arise any question of termination of her services by management no. 1 on 22.11.2008, nor, is there any question of her termination being illegal, in violation of any provision of Industrial Disputes Act, 1947. According to management no. 1, the claimant was an employee of management no. 2 and it was management no. 2, who was responsible for her supervision, control, payment of wages and for depositing ESI and PF contributions on her behalf under its own ESI and PF Code LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 4 of 27Numbers allotted by ESIC and Regional EPFO. Management no. 1 has thus prayed for dismissal of the claim of the workman with heavy costs.
7. A separate written statement was filed on behalf of management no. 2 on 17.05.2013. Management no. 2, in its written statement, has not denied the employment of the workman by management no. 2 and the rate of wages alleged in the statement of claim, however, according to management no. 2, services of the workman were never terminated by management no. 2. It is the case of management no. 2 that the claimant, along with other workers employed by management no. 2, resorted to a strike w.e.f. 22.11.2008 on the instigation of the union and despite persuasion, did not bother to report for work. It is further the case of management no. 2 that the demand notice dated 08.05.2011 has been received by the management after expiry of three years from the date of alleged termination of the workman, in as much as, no notice dated 23.11.2008 was ever served upon the management no. 2.
8. According to management no. 2, a license under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 has been duly issued in the name of management no. 2 and management no. 2 has no objection in case the claimant returns to work and explains the reasons for her long absence of more than three years. Management no. 2 has thus prayed for dismissal of the claim of the workman on the ground that she is deliberately absenting from duties for last four years.
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Judgment dated 08.05.2024 Page 5 of 279. No rejoinder to the aforesaid written statements was filed on behalf of the workman despite opportunity. Rather, an application under Order 6 Rule 17 CPC, seeking amendment in the statement of claim, was filed on behalf of the workman, which was dismissed by Ld. Predecessor of this Court vide order dated 21.01.2014. No formal issues were settled by Ld. Predecessor of this Court in the present case. On the other hand, after completion of pleadings of the parties, the matter was straightaway adjourned for workman's evidence.
10. Workman has thereafter examined two witnesses in support of her case including herself. She has examined herself as WW-1 and has tendered her evidence by way of affidavit Ex.WW1/A along with following documents:-
(i) Ex.WW1/1: Original certificate issued by Delhi State AIDS Control Society in the name of the claimant.
(ii)Ex.WW1/2:Experience certificate dated 19.09.2005.
(iii)Ex.WW1/3(colly): Daily ward reports.
(iv)Ex.WW1/4: Original monthly subscription slip of the union.
(v)Ex.WW1/5 and Ex.WW1/6:Certified copies of the application of Sh. Mohan Lal Jonwal Dated 29.01.2010 under RTI Act and information received by Sh. Mohan Lal Jonwal, General Secretary of the union vide letter dated 10.02.2010 from Assistant Labour Commissioner/ SPIO, District West, Labour Department, Govt. of NCT of Delhi.
(vi)Ex.WW1/7 and Ex.WW1/8:Certified copies of the application of Sh. Mohan Lal Jonwal Dated 23.12.2009 under RTI Act and information received by Sh. Mohan LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.Judgment dated 08.05.2024 Page 6 of 27
Lal Jonwal, General Secretary of the union vide letter dated 21.01.2010 from Assistant Labour Commissioner/ SPIO, District West, Labour Department, Govt. of NCT of Delhi.
(vii):Ex.WW1/9: Copy of demand notice.
(viii)Ex.WW1/10:Original postal receipt with respect to dispatch of said notice.
(ix)Ex.WW1/11 and Ex.WW1/12: Copy of fresh demand notices dated 05.09.2011 sent by workman to management no.1 and 2.
(x)Ex.WW1/13 and Ex.WW1/14: Original postal receipts with respect to dispatch of said notices.
11. During her cross-examination, she was confronted with the following documents:-
(i) Mark A: Copy of wages payment register for the month of November 2008.
(ii) Mark B: Date of eligibility & ESI Record in respect of employees deployed at Maharaja Agrasain Hospital issued by management no. 2 dated 16.03.2009.
(iii) Mark C: Form -6 Certificate under ESIC Act.
(iv) Mark D: Form- 6A qua Deduction of PF by management no. 2.
(v) Mark E: Copy of reply dated 20.12.2008 issued by management no. 1 to the demand notice dated 23.11.2008 of the claimant.
(vi) Mark F: Copy of reply dated 13.09.2011 issued by management no. 1 to the demand notice dated 05.09.2011 of the claimant.
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Judgment dated 08.05.2024 Page 7 of 2712. Sh. Mohan Lal, the alleged co-worker of the claimant, who was also the General Secretary of Maharaja Agrasen Hospital Employees Union and AR of claimant, has been examined by the workman as WW-2. He has tendered his evidence by way of affidavit Ex.WW2/A along with following documents:-
(i)Ex.WW2/1:Copy of letter dated 15.10.2007 to management no.1 along with postal receipt.
(ii)Ex.WW2/2:Copy of inspection report/proceedings dated 29.12.2011 of the Labour Department.
(iii)Ex.WW2/3:Copy of application/complaint dated 26.12.2011 to Dy. Labour Commissioner, West District, Delhi.
13. Besides, he has relied upon the documents already Ex. WW1/5 to Ex. WW1/8. During his cross-examination, he was confronted with the following documents:-
(i) Ex. WW2/XM1: Copy of appointment letter of WW-2 issued by management no. 1.
(ii) Ex. WW2/XM2: Copy of identity card of WW-2 issued by management no. 1.
(iii) Ex. WW2/XM3: Copy of EPFO form of WW-2 for allotment of Social Security Number.
(iv) Ex. WW2/XM4: Copy of termination order dated 07.10.2008 of WW-2 issued by management no. 1.
(v) Ex. WW2/XM5: Notice dated 24.01.2013 issued by president of Delhi Hospitals & Nursing Homes Employees Federation.
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Judgment dated 08.05.2024 Page 8 of 27(vi) Ex. WW2/XM6: Copy of application dated 24.06.2008 for re-opening the evidence of workman.
(vii) Ex. WW2/XM7: Copy of award dated 12.01.2010 passed in ID No. 85/01.
(viii) Mark WW2/M1X: Copy of license dated 27.02.2006 in the name of management no. 2 under the provisions of Contract Labour (Regulation and Abolition) Act, 1970.
14. After cross-examination of WW-1 and WW-2 by Ld. ARs for both the managements, on the submission of Ld. AR for workman, workman's evidence was closed vide order dated 01.07.2016.
15. Management no. 1 has thereafter examined three witnesses in support of its case. Mr. Rakesh Gera, Senior Administrative Officer of management no. 1 has been examined as MW-1 and he has tendered his evidence by way of affidavit Ex.MW1/A along with following documents:-
(i) Ex.MW1/1:Resolution dated 12.05.2015 in favour of MW-1.
(ii) Ex.MW1/2 :Copy of award dated 12.01.2010.
(iii) Ex.MW1/3:Copy of order dated 08.04.2009.
(iv) Ex.MW1/4:Copy of the constitution of the union.
(v) Ex.MW1/5:Copy of contract dated 01.04.2006.
(vi) Ex.MW1/6:Copy of contract dated 01.04.2009.
(vii) Ex.MW1/7:Letter dated 04.04.2011 by which contract has been extended upto 31.03.2012.LIR No. 3882/2016
Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 9 of 27(viii) Ex.MW1/8:Letter dated 13.04.2012 by which contract has been extended upto 31.03.2014.
(ix) Ex.MW1/9:Letter dated 10.10.2013 by which contract was discontinued w.e.f. 10.11.2013.
(x) Ex.MW1/10:Copy of letter dated 20.10.2014 for extension of contract.
(xi) Ex.MW1/11(colly): Copy of letter dated 03.11.2014, 12.01.2015 and 21.02.2015.
(xii) Ex.MW1/12:Copy of application for registration of Establishment under Contract Labour (Regulation and Abolition) Act, 1970 alongwith its annexures.
(xiii) Ex.MW1/13(colly): Copy of letter dated 13.03.2012 of the Licensing Officer under Contract Labour (Regulation & Abolition) Act, 1970 and requests dated 25.09.2012, 11.02.2014, 27.01.2015, 25.03.2015, 18.04.2015, 08.04.2016 for amendment in Registration Certificate.
(xiv) Ex.MW1/14: Copy of reply dated 20.12.2008 of the management no. 1 to the demand notice of claimant dated 23.11.2008.
(xv) Ex.MW1/15: Copy of evidence of the claimant in CC No. 143/2010.
(xvi) Ex.MW1/16: Copy of award dated 25.07.2011 in CC No. 143/2010.
(xvii) Ex.MW1/17(colly): Copy of reply dated 13.09.2011 of management no. 1 to the demand notice dated 05.09.2011 of the claimant along with postal receipt.
(xviii) Ex.MW1/18(colly): Copy of advertisement in newspaper, bio-data, application form, recommendation of selection committee, offer letter, LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 10 of 27medical examination report, joining report, appointment letter, ID card, performance appraisal, extension / confirmation letter of the personal assistants/ stenographers employed by management no.
1. (xix) Ex.MW1/19:Copy of death certificate of Late Sh. S.P. Puri.
(xx) Mark-A: Copy of Contract for Service Agreement dated 11.01.2014.
(xxi) Mark-B: Copy of Contract for Service Agreement dated 05.04.2014.
(xxii) Mark-C: Copy of Certificate of Registration dated 23.11.2006.
16. During his cross-examination dated 26.04.2022, he was confronted with the document Ex.MW1/X by Ld. AR of workman.
17. Sh. Bharat Bhushan Nautiayal, Head Clerk from ESIC Office at Shastri Nagar, (Kishanganj) has been examined by management no. 1 as M1W2 and he has produced his authority Ex.M1W2/1 and a certified copy of the declaration form of the claimant bearing the stamp of management no. 2 Ex.M1W2/2.
18. Sh. Devender Singh, Senior Social Security Assistant, EPFO, Branch Wazirpur Industrial Area has been examined by the management no. 1 as M1W3 and has produced the following documents:-
(i) Ex.M1W3/1: Authority letter.LIR No. 3882/2016
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Judgment dated 08.05.2024 Page 11 of 27(ii) Ex.M1W3/2: Certified copy of member ledger with respect to the claimant bearing account no. DLCPM0022154/1824 for the period 01.04.2007 to 28.02.2008
(iii) Ex.MW1W3/3:Certified copy of Form 9 regarding withdrawal of deposits/member status.
19. All the three witnesses examined on behalf of the management no. 1 were duly cross-examined by Ld. AR for workman and thereafter, on the submission of Ld. AR for management no. 1, evidence on behalf of management no. 1 was closed vide order dated 24.09.2022.
20. Though, one Sh. Sanjay Gandhi, Proprietor of management no. 2, has examined himself as MW-2 and has tendered his evidence by way of affidavit Ex.MW2/A on 07.09.2017, however, thereafter, he had failed to present himself for his cross-examination despite repeated opportunities and hence, the evidence of management no. 2 was closed by Ld. Predecessor of this Court vide order dated 30.09.2022. Since, MW-2 had failed to offer himself for his cross-examination by the workman, evidence by way of affidavit of MW-2 stands expunged from the record.
21. Final arguments were thereafter heard on behalf of management no. 1 and 2, whereas, none has come forward on behalf of workman to advance final arguments despite repeated opportunities. Besides, written submissions of behalf of management no. 2 were filed on 30.11.2022, whereas, written LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 12 of 27submissions on behalf of management no. 1 were filed on 10.11.2023.
22. It is submitted by Ld. AR for management no. 1 that that as per reference dated 07.11.2012, this Court is required to adjudicate the issue as to whether there existed any relationship of employer and employee between the management no. 1 and the claimant or else whether any such relationship exists between the management no. 2 and the workman. It is only upon adjudication of the aforesaid question, according to her, that this Court is required to decide whether the services of the workman were illegally terminated by either the managements and if so, to what relief is the workman entitled.
23. She submits that the instigation for the present claim is the action taken by management no. 1 against the AR of the claimant, whose services were terminated by management no. 1 due to misconduct. She submits that the management no. 1 has categorically taken a plea that the claimant had never been employed by management no. 1. Rather, she was employed by management no. 2, who had been awarded a contract for providing house keeping services. Under the aforesaid circumstances, according to her, the initial onus to prove the employer-employee relationship, between management no. 1 and the claimant, was upon the claimant.
24. In order to discharge the aforesaid onus, according to her, the claimant has not only relied upon a self-serving statement in LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 13 of 27her evidence by way of affidavit Ex.WW1/A but has also relied upon the photocopies of certain documents such as- one day training certificate of Delhi State Aids Control Society, copy of letter from Maharaja Agrasen Heart Institute and Research Centre, RTI letters and demand notice etc. None of the aforesaid documents, according to her, are sufficient to prove the existence of employer and employee relationship between management no. 1 and the claimant. She further submits that though the claimant, when confronted with the copies of wage register of management no. 2 and her ESI/EPF enrollment by management no. 2, had denied the same, however, the management no. 1 has been able to prove the deduction and deposit of ESI and PF contribution on behalf of the workman by management no. 2 by examining M1W2 and M1W3.
25. She submits that WW-2, who was also the AR of the claimant, has admitted during his cross-examination that he was issued proper appointment letter, ID card and employee code by management no. 1, that his wages were being transferred by management no. 1 to his bank account and that his attendance was being marked through biometric punching. The aforesaid admissions on the part of WW-2, according to her, clearly indicate that all the employees under direct employment of management no. 1 had always been issued proper appointment letters, ESI cards bearing employee code number, identity cards etc. and their wages used to be paid to them by management no. 1 in their bank account.
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Judgment dated 08.05.2024 Page 14 of 2726. The aforesaid fact, according to Ld. AR for management no. 1, has also been duly proved by management no. 1 through uncontroverted testimony of MW-1, who has tendered the documents Ex.MW1/18 (colly) in his evidence i.e. the sample of personnel record of employees of management no. 1. Under the aforesaid circumstances, according to Ld. AR for management no. 1, since the claimant has failed to prove the existence of any employer-employee relationship between management no. 1 and the claimant by production of any appointment letter, written agreement, joining report, attendance register, salary register, leave record, proof of deduction and deposit of PF and ESI contribution by management no. 1 on behalf of the claimant, she has failed to discharge her onus to prove the existence of employer-employee relationship between management no. 1 and the claimant.
27. So far as the plea of the workman regarding contract between management no. 1 and management no. 2, in respect of house keeping services including Ward Aayas, being sham and bogus is concerned, according to her, this Court cannot go into the aforesaid issue having not been referred by the appropriate Government to this Court. She further submits that the claimant is not entitled to any relief in the matter merely on the basis of admissions on the part of both the managements regarding she being an employee of management no. 2 in view of categorical denial by her, not only in her statement of claim but also in her evidence by way of affidavit, of existence of any employee-
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Judgment dated 08.05.2024 Page 15 of 27employer relationship between the claimant and the management no. 2. Since according to her, the claimant has not even taken a plea that she was an employee of management no. 2, there is no question of declaration of the contract between management no. 1 and 2 as sham and camouflage thereby considering her to be an employee of management no. 1. She has thus prayed for dismissal of the claim of claimant while relying upon the following judgments:-
i) Shambhu and Anr. Vs. Sugan Drycleaners & Anr. 2017 LLR 909 Delhi
ii) Indira Gandhi National Open University Vs. Union of India and Anr. 2016 LLR 12 Delhi
iii) Municipal Committee, Tauru Vs. Harpal Singh and Anr. AIR 1999 SC 843.
iv) Chhathoo Lal Vs. M/s Goramal Hariram Ltd. W.P. (C) No. 14191/2004 decided by Hon'ble Delhi High Court on 05.12.2006
v) LIC Vs. R Dhandapani (2006) 13 SCC 613.
vi) J.K. Iron and Steel Co. P Ltd. Vs. Iron and Steel Mazdoor Union and Ors. 1956 (I) LLJ 227 SC.
vii) General Manager (OSD) Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and Anr. (2011) 1 SCC 635.
viii) Steel Authority of India Ltd. Vs. Union of India 2006 (111) FLR 483.
28. On the other hand, it has been submitted by Ld. AR for management no. 2 that the dispute sought to be raised by claimant is not covered under Section 2A of the Industrial LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 16 of 27Disputes Act, 1947 nor is it covered under the provisions of Section 2(k) of the Act since there has been no termination of services of the claimant by management no. 2 nor she has produced any espousal statement on record. He submits that the claimant has not claimed any relief against management no. 2. Rather, she herself has categorically denied the existence of any employer-employee relationship between management no. 2 and the claimant. He submits that the claimant, along with other employees, resorted to strike w.e.f. 22.04.2008 on the instigation of the union and despite persuasion has failed to report on her duty.
29. Due to her rigid attitude, according to management no. 2, no settlement could be arrived between the parties despite intervention of the Assistant Labour Commissioner. He submits that the management no. 2 has received the demand notice from the claimant for the first time after expiry of more than 03 years from the date of her alleged termination by management no. 1. Management no. 2 has thus prayed for dismissal of the present claim of the workman against the management no. 2.
30. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record.
31. As has already been observed hereinabove, no formal issues were settled in the present case by Ld. Predecessor of this Court and the trial in the present case has been concluded without settlement of issues. Be that as it may, it is settled legal position LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 17 of 27that in any reference under Section 10(1)(c) read with Section 12(5) of the Industrial Disputes Act, 1947, the Court is bound by the terms of reference. Under the aforesaid circumstances, even the issues, if any, settled by the Court were required to be in terms of the reference dated 07.11.2012, wherein, the issues arising between the parties have been succinctly stated in the following terms:-
(i) Whether the employer and employee relationship existed between Smt. Mukesh Devi W/o Sh. Vijay Pal and the management of M/s. Maharaja Agarsen Hospital or the management of M/s. Ujjawal Enterprises?
(ii) If so, whether her services have been terminated illegally and/or unjustifiably by the management?
(iii) If so, to what relief is she entitled and what directions are necessary in this respect?
32. I shall proceed to decide the aforesaid issues by one by one.
Issue no. 1: Whether the employer and employee relationship existed between Smt. Mukesh Devi W/o Sh. Vijay Pal and the management of M/s. Maharaja Agarsen Hospital or the management of M/s. Ujjawal Enterprises?
33. As has already been observed hereinabove, it is the own case of claimant, as per the statement of claim, that the management no. 2 has been impleaded by her due to abundant caution despite there being no employer-employee relationship between management no. 2 and the claimant and that LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 18 of 27management no. 2 had nothing to do with her recruitment, supervision or control or payment of her wages. The claimant in her statement of claim has categorically taken a plea that she was recruited by management no. 1 and not only her work was being exclusively supervised and controlled by management no. 1, but, payment of her wages were also being regularly made by management no. 1.
34. It has already been observed hereinabove that though the managements in their separate written statements have taken a categorical stand that the claimant was an employee of management no. 2 and was deployed at establishment of management no. 1 pursuant to a contract for the work of house keeping in the hospital including that of Ward Aayas, however, the claimant had chosen not to file any rejoinders to either of the aforesaid written statements. Under the aforesaid circumstances, in my considered opinion, in view of categorical stand of the claimant that she had never been under employment of management no. 2, she cannot be considered to be an employee of management no. 2.
35. So far as the plea of claimant regarding she being under direct employment of management no. 1 is concerned, the claimant has failed to produce any appointment letter issued by management no. 1 in her name. Though she has relied upon the document Ex.WW1/1, as one of the documents in support of her plea that she was under the direct employment of management no. 1, however, a bare perusal of the aforesaid document shows LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 19 of 27that the same is a certificate, issued by Delhi State Aids Control Society, to the effect that the claimant herein had undergone one day training course in prevention and control of HIV organized by management no. 1 in collaboration with the aforesaid society on 06.11.2002. By no stretch of imagination, the aforesaid document can be considered to be a proof of employment of the claimant by management no. 1.
36. So far as the document Ex.WW1/2 is concerned, the same is a certificate dated 19.09.2005 purportedly issued by Senior RMO of Maharaja Agrasen Heart & Research Institute (A Unit of Management no. 1) to the effect that the claimant had been working as Aaya in the aforesaid Centre from November, 2001 till 19.09.2005. However, once again, in my considered opinion, the aforesaid document itself is not sufficient to prove the existence of any employer-employee relationship between the management no. 1 and the claimant, in as much as, it is not denied by management no. 1 that the claimant had been working with management no. 1 and the only defence of management no. 1 is that she was working at the hospital of management no. 1 through management no. 2. There is no admission in the aforesaid document regarding the claimant being an employee of management no. 1.
37. So far as the document Ex.WW1/3 is concerned, the same is purportedly a photocopy of the Daily Ward Report of the management no. 1, wherein, the details of the staff on duty include the name of claimant as an Aaya. Once again, merely LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 20 of 27because the Daily Ward Report of the management no. 1 contains the name of the claimant herein, the same cannot be considered to be a proof of the claimant being an employee of management no. 1 since though admittedly she was working with management no. 1, but, as an employee of management no. 2.
38. So far as the documents Ex.WW1/5 to Ex.WW1/8 are concerned, the same are the copies of applications of AR of claimant to the Deputy Labour Commissioner (West) under Right to Information Act, 2005, seeking information about the license, if any, issued to the contractors of management no. 1 for providing the services of Ward Aayas and replies thereto, which indicates that no license under Contract Labour (Regulation and Abolition Act), 1970 had been issued in the name of management no. 2 for providing the aforesaid services at the establishment of Management no. 1. However, in view of the authoritative pronouncement of Hon'ble Supreme Court in Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors. (2001)7 SCC 1, it is by now well-settled that merely because a contractor does not hold any license under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, the aforesaid fact by itself is not sufficient to presume that the employees, engaged by the principal employer through the aforesaid contractor, shall automatically become the direct employees of the principal employer. Relevant observations of the Constitution Bench of Hon'ble Supreme Court of India in Steel Authority of India's case supra in this regard are as LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 21 of 27follows:
"96. In Dena Nath case [(1992) 1 SCC 695: 1992 SCC (L&S) 349] a two-Judge Bench of this Court considered the question, whether as a consequence of non-compliance with Sections 7 and 12 of the CLRA Act by the principal employer and the licensee respectively, the contract labour employed by the principal employer would become the employees of the principal employer. Having noticed the observation of the three-Judge Bench of this Court in Standard Vacuum case [AIR 1960 SC 948 : (1960) 3 SCR 466] and having pointed out that the guidelines enumerated in sub-section (2) of Section 10 of the Act are practically based on the guidelines given by the Tribunal in the said case, it was held that the only consequence was the penal provisions under Sections 23 and 25 as envisaged under the CLRA Act and that merely because the contractor or the employer had violated any provision of the Act or the Rules, the High Court in proceedings under Article 226 of the Constitution could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. This Court thus resolved the conflict of opinions on the said question among various High Courts. It was further held that neither the Act nor the Rules framed by the Central Government or by any appropriate Government provided that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer."
39. No other document has been filed on behalf of the workman to prove the existence of any employer-employee relationship between the management no. 1 on the one hand and the claimant on the other.
40. On the other hand, the management no. 1 has examined its Sr. Administrative Officer as MW-1, who has tendered his evidence by way of affidavit Ex.MW1/A along with contracts/allied documents executed between management no. 1 and 2 to provide house keeping services at the hospital of LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 22 of 27management no. 1from time-to-time. Besides, MW-1 has also tendered the copies of selection and appointment procedure of various employees of management no. 1 i.e. the advertisements in newspapers, bio-data and application forms submitted by the applicants pursuant thereto, recommendations of the selection committee of the employees of management no. 1, their offer letters, medical examination reports, joining reports, appointment letters, ID cards, their performance appraisal and extension/confirmation letters etc. as Ex.MW1/18 (colly) by way of sample which indicates that a proper recruitment process was being followed by management no. 1 for recruitment of its employees by way of public advertisements and proper appointment letters and identity cards were being issued to them.
41. In fact, the claimant has examined her AR, as WW-2, in support of her case, who was admittedly under direct employment of management no. 1. During his cross-examination, WW-2 has admitted his appointment letter and identity card besides, other documents which indicates that management no. 1, as a matter of practice, issues proper appointment letters to all its direct employees and even PF and ESI contributions on their behalf are being deducted by management no. 1. The aforesaid fact was admitted by WW-2, own witness of the claimant, during his cross-examination, though, the claimant had pleaded ignorance about the aforesaid fact during her cross-examination. On the other hand, admittedly, no appointment letter or identity card was ever issued by management no. 1 in the name of the LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 23 of 27present claimant nor any PF or ESI contribution was ever deducted or deposited by management no. 1 on her behalf, which indicates that claimant was never an employee of management no. 1 but was merely deployed at the establishment of management no. 1 through management no. 2. The fact of deduction and deposit of PF and ESI contribution on behalf of the claimant by management no. 2 has also been proved by management no. 1 by examining M1W2 and M1W3 respectively.
42. So far as the testimony of WW-2, in support of the aforesaid plea of workman, is concerned, in my considered opinion, it has been the stand of management no. 1 that the genesis of the present claim of the claimant is the termination of services of WW-2 by management no. 1, as he has instigated the contractual employees of management no. 1 to proceed on strike. There is no denial of the fact that the services of AR of the claimant, who has examined himself as WW-2, were terminated by management no. 1 on the ground of misconduct and hence, in my considered opinion, in the absence of any independent corroboration, bald statement of WW-2, to the effect that claimant was working as an employee of management no. 1, is not sufficient to prove the existence of any employer-employee relationship between management no. 1 and the claimant.
43. In view of the aforesaid discussion, in my considered opinion, the claimant has failed to discharge her onus to prove the existence of any employer-employee relationship between management no. 1 and the claimant by leading any cogent LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 24 of 27evidence, in as much as, she has neither produced any document in support of her self-serving statement to the aforesaid effect nor has she sought production of any record/document from management no. 1 to prove the existence of such relationship. So far as existence of any such relationship between management no. 2 and claimant is concerned, she herself has denied the existence of any employer-employee relationship between management no. 2 and herself and in view of various judgments relied upon by Ld. AR for management no. 1, the Court can not make out an altogether new case on her behalf contrary to her pleadings.
44. Issue no. (i) is thus decided against the claimant.
(ii) If so, whether her services have been terminated illegally and/or unjustifiably by the management?
45. As has already been observed hereinabove, the claimant has failed to prove that she had ever been under employment of management no. 1 and hence, there is no question of termination of her services by management no. 1, much less, of the alleged termination being illegal. Similarly, in the wake of denial by the claimant of existence of any employer-employee relationship between management no. 2 and herself, there does not arises any question of illegal termination of her services by management no.
2.
46. In fact, during her cross-examination by management no. 2, the claimant herself has admitted that no termination letter was LIR No. 3882/2016 Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 25 of 27ever given by management no. 2 to the claimant. She has further admitted that in the year 2008, she has reported for her duties only once and thereafter had never reported for her duties for a period of almost 06 years. Even in the year 2008, she could not disclose the name of the person to whom she had reported on duty. In fact, she has consistently taken a stand during her cross- examination that she does not have any concern with management no. 2 nor she knows the management no. 2. Under the aforesaid circumstances, in my considered opinion, the claimant has failed to prove the illegal termination of her services by either of the managements.
47. Issue no. (ii) is thus decided against the claimant.
Issue no. (iii): If so, to what relief is she entitled and what directions are necessary in this respect?
48. In view of the fact that the claimant has failed to prove the existence of any employee-employer relationship between her on the one hand and either of the managements on the other or that her services were illegally terminated by either of the managements, in my considered opinion, she is not entitled to any relief.
49. In view of the aforesaid discussion, the claim of the claimant against both the managements is hereby dismissed and the reference dated 07.11.2012 is answered in the negative in the following terms:
LIR No. 3882/2016Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.Judgment dated 08.05.2024 Page 26 of 27
"The claimant has failed to prove the existence of employee-employer relationship between her and either of the managements or that her services have been terminated illegally and/or unjustifiably by the managements, and hence, she is not entitled to any relief."
50. Requisite number of copies of this award be sent to the competent authority for publication as per rules.
Announced in the open Court on this 08th day of May, 2024. This award consists of 27 number of signed pages.
ARUN Digitally signed by
ARUN KUMAR GARG
KUMAR Date: 2024.05.08
GARG 15:34:41 +05'30'
(ARUN KUMAR GARG)
Presiding Officer Labour Court-III
Rouse Avenue Court, New Delhi
LIR No. 3882/2016
Mukesh Devi Vs. M/s Maharaja Agrasen Hospital & Anr.
Judgment dated 08.05.2024 Page 27 of 27