Delhi District Court
Ajay Kumar vs Bses Rajdhani Power Ltd on 17 November, 2023
1
IN THE COURT OF Ms. MONIKA SAROHA
PRESIDING OFFICER, LABOUR COURT No. 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
LCA No. 565/2016
CNR No. DLCT13- 000944-2010
Date of institution 22.09.2010
Date of Award 17.11.2023
Sh. Ajay Kumar,
S/o Sh. Bal Krishan,
R/o RZ 203, Street No. 14A/5,
Sadh Nagar, Palam Colony,
New Delhi 110045.
C/o Pujya Kumar Singh Advocate,
225, Western Wing, Tis Hazari,
New Delhi 110054.
AR of the applicant: Sh. Pujya Kumar Singh, Ch. No. 225, Western
Wing, Tis Hazari, New Delhi.
......Applicant.
Versus
M/s BSES Rajdhani Power Ltd.
Sh. Bhupender Singh Notey,
MLCC Dept., 33 KV Grid,
Outer Ring Road, VSNL Building,
Greater Kailash,
New Delhi 110048.
ARs of the management: Sh. Rajesh Kumar Sharma, Ch. No. F607,
6th Floor, Karkardooma Court & Sh. Arvind Gupta (Adv.).
......Management.
LCA No. 565/2016
2
AWARD
1.Vide this order I shall dispose off the application U/Sec. 33 (C) (2) of Industrial Disputes Act, filed by Sh. Ajay Kumar against M/s BSES Rajdhani Power Ltd.
CASE OF THE APPLICANT
2. According to this application under Section 33(C)(2) of the Industrial Disputes Act, the applicant was employed with M/s BSES Rajdhani Power Ltd., from 07.05.2005 as a 'Field Executive'. He worked with the management at the same post till 21.05.2009 drawing a salary of Rs. 6500 per month. However from 21.05.2009 onwards he was not allowed to join his duties. He then sent a demand notice through his advocate, Sh. Pujya Kumar Singh, to the management on 01.07.2009 seeking his unpaid salary of Rs. 13,000/- for the period from April to June 2009. As the management did not respond to this notice, the applicant filed this application before this court seeking his unpaid salary amounting to Rs. 13,000/- and also seeking his reinstatement.
REPLY OF THE MANAGEMENT
3. In its reply, the management took the stand that there was no "employer-employee relationship" between it and the applicant as it had never appointed the applicant. According to the management, LCA No. 565/2016 3 the applicant was an employee of one M/s Adecco and was only working at its location as deputed by M/s Adecco. Thus, it was not liable to pay any amount to the applicant.
REJOINDER OF THE APPLICANT
4. The applicant filed rejoinder to the reply of management and denied the averments made in the reply and reiterated the contents of his application under Section 33 (C)(2) of the Industrial Disputes Act.
ISSUES FRAMED
5. On the basis of the pleadings the following issues were framed by the Ld. Predecessor on 12.12.2012.
1. Whether there is any employee-
employer relationship between the applicant and the management? OPW
2. If issue no.1 is decided in favour of the applicant, whether applicant is entitled for any relief? OPW
3. Whether the application is not maintainable for non-rejoinder and mis-
joinder of the parties? OPM
4. Relief After the issues were framed, the matter was listed LCA No. 565/2016 4 for applicant's evidence.
APPLICANT'S EVIDENCE
6. The applicant appeared in the witness box as the sole witness and filed his evidence by way of affidavit. In this affidavit, the averments of the claim, as mentioned above were reiterated. The applicant relied upon the following documents:-
i) Ex. WW1/1 - Letter dated 30.11.2005 issued by management authorizing the applicant for downloading the meter reading from the optical port of the meters installed by the management.
ii) Ex. WW1/2 - Memo dated 21.05.2009 issued to the applicant by the management for being involved in breaking some parts of the meters installed by the management and also for not performing his duties diligently.
iii) Ex. WW1/3 - Envelop dated 01.07.2009 addressed to the management sent by the AR of the applicant.
iv) Ex. WW1/4 - Postal receipt regarding sending of the above envelope.
v) Ex. WW1/5 - Document issued by the management showing that the applicant was authorized by it to visit the premises of its customers for taking meter reading.
vi) Mark A - Letter dated 01.07.2009 issued by the AR of the applicant to the management (also referred to as document Ex.LCA No. 565/2016 5
WW2/A in the testimony of the second witness Sh. Pujya Kumar Singh).
6.1 The applicant also examined Sh. Pujya Kumar Singh, Advocate, Ch. No. 225, Western Wing, Tis Hazari as his second witness. Sh. Pujya Kumar Singh appeared as WW2 and deposed that he was the Authorized Representative of the applicant since the applicant first approached him for sending a legal notice/demand notice to the management. In his evidence he deposed that the notice dated 01.07.2009 which was on his letter head, was indeed issued by him to the management under instructions from the applicant. In his testimony the said notice was exhibited as Ex. WW2/A ( Although the original was never produced).
6.2 Both these witnesses were cross-examined by the AR of the management. No other witness was examined and upon request, the evidence of the applicant was closed and the matter was listed for management evidence.
MANAGEMENT EVIDENCE
7. The management summoned a witness from Axis Bank as MW1, but later this witness was not presented for complete chief- examination and cross-examination and therefore his testimony cannot be read in evidence.
LCA No. 565/2016 67.1 Thereafter, the management examined Sh. Girish Sharma, Deputy General Manager, BSES as its main witness. He appeared in the witness box as MW2 and tendered his evidence affidavit. In his affidavit he reiterated the contents of the written statement as filed by the management. He placed on record a copy of one contract dated 16.03.2009 executed between the management and one contractor ( the name of the contractor is not visible in this document which was marked as 'Mark A'). He was cross-examined by the AR of the applicant at length. No other witness was examined by management and upon request, the evidence of the management was closed. The matter was then listed for final arguments.
ARGUMENTS
8. The ARs of the applicant and management advanced detailed arguments on 05.09.2023 which were heard by this court. Thereafter, clarifications were answered on 21.09.2023. All the relevant documents on record were considered.
ISSUE-WISE FINDINGS
9. The issue-wise findings on the basis of arguments advanced and material on record are discussed in details in the sub- paragraphs that follows:-
LCA No. 565/2016 7Issue No.1:- Whether there is any employee-employer relationship between the applicant and the management? OPW 9.1 The onus to prove this issue was upon the applicant, therefore he had to establish that he had worked with the management for the duration as mentioned by him in his claim before this court.
However, except for the bald averments of the applicant in his own evidence affidavit that he worked with management from 2005 till 2009 (around 4 years) there is no material on record to establish such employment. It was the duty of the applicant to lead appropriate evidence to substantiate his claim before the court regarding him having joined the management in May 2005 and working till 2009. However, neither any oral nor documentary evidence, other than the self serving statement of the applicant was brought on record to establish this fact.
9.2 The applicant could have summoned/moved appropriate application u/s 11 (3) (b) of Industrial Disputes Act, praying that the muster roll, attendance record, wages register, etc., for the period beginning from May, 2005 to May 2009 as maintained by the management be brought on record through the court. Such a record if summoned, would have shown if the applicant was indeed working with the management since May, 2005. However, for reasons best know to him, the applicant never made any effort to bring on record LCA No. 565/2016 8 his attendance record or muster roll, etc. 9.3 The applicant could have also examined any of his co- worker who would have worked with him from May 2005 till May, 2009 to support his testimony, however, no effort was made to summon any co-worker in this regard.
9.4 It has been repeatedly held by Hon'ble Higher Courts that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law - `ei incumbit probatio, qui dicit, non qui negat' - the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the applicant. The applicant can discharge the same by leading cogent and reliable evidence in respect thereof which could be oral or documentary. In the event of non-availability of the same, he can very well cause the same to be summoned from the authorities concerned or the management itself and place the same before the industrial adjudicator.
9.5 Further, even though the provisions of the Indian Evidence Act are not applicable to these proceedings, the general LCA No. 565/2016 9 principles of the Indian Evidence Act, 1872 are, however, are applicable. Undoubtedly, therefore, the principles of law laid down with regard to discharge of burden and onus of proof have to be strictly adhered to. The parties to the adjudication have to make out a case in law to be entitled to adjudication in their favour. Thus, the applicant should have filed some material during trial to establish his relationship with the management. Even if no direct evidence was available with him, he could have placed on record some circumstantial evidence, which he did not do as discussed above.
9.6 The only two relevant documents on record i.e. Ex. WW1/1 and Ex.WW1/2 are not sufficient to show that the applicant was an employee of the management. It is not every document which can establish employer-employee relationship. A document which can be said to be establishing this relationship must be very direct, clear and cogent one like an appointment letter, salary slip, charge-sheet served during employment by the employer, attendance record, PF deduction documents, ESI card and similar others.
9.7 The document Ex. WW1/1, even if admitted on its face value, does not establish during which period the applicant worked with the management. This document admittedly was created on 10.11.2005 and was valid only for 20 days upto 30.11.2005 (as revealed from the document itself). Therefore, at best this document can show that LCA No. 565/2016 10 the applicant worked for the management for 20 odd days and does not establish that he worked for the management even for 240 days in the relevant preceding year, what to talk of five years! 9.8 Even though the original of document Ex. WW1/2 was filed, this document was not proved by the applicant. Mere filing of a document is not sufficient, it must be proved in accordance with the general rules of the Evidence Law. The maker of the document Ex. WW1/2 never appeared in the witness box, none of the signatories to this document ever appeared in the witness box, no one who could identify the signatures of the signatories were summoned by the applicant and also the management witness during his cross examination did not admit this document as a document of the management. Thus, this court cannot rely on such a document which has not even been proved.
9.9 In view of the discussion above, this court is of the view that the applicant has miserably failed to establish 'employer- employee relationship' between him and the management. None of the documents filed by him or the evidence led by him establish such a relationship between him and the management. It is thus held that there was no employer-employee relationship established between the applicant and the management. This issue is accordingly decided in favour of the management and against the applicant.
LCA No. 565/2016 11Issue No.2:- If issue no.1 is decided in favour of the applicant, whether applicant is entitled for any relief? OPW 9.10 As issue no.1 is decided against the applicant he is not found entitled to any relief. This issue is also decided in favour of the management and against the applicant.
Issue No.3:- Whether the application is not maintainable for non-rejoinder and mis-joinder of the parties? OPM 9.11 The onus to prove this issue was upon the management.
Even though the management took the defence that the applicant was not its employee, but was the employee of one 'M/s Adecco', however no evidence was led in this regard by the management. The management did not file any document to show that the applicant was an employee of M/s Adecco for the relevant period and therefore M/s Adecco was a necessary party in this matter. No document was filed by the management to show what kind of contract it had with M/s Adecco. In fact, no such original contract was ever filed by the management on record. The only document filed in this regard by the management witness Sh. Girish Sharma is a bleek, illegible photocopy of one contract dated 16.03.2009. From this document (which was given LCA No. 565/2016 12 the marking of document 'Mark A' in the chief-examination of witness Sharma on 04.07.2018), it is not even clear whether this is the photocopy of a contract between the management and the said M/s Adecco and the name of the second party is nowhere visible in the title page of this document. To the contrary, at one place at internal page no. (271/193) of the contract it is mentioned that the contractor in this contract means one M/s NCNL Info Media Pvt. Ltd. Thus, no contract between the management and said M/s Adecco is on record. Therefore it is held that the management failed to establish that M/s Adecco was a necessary party in this proceedings. This issue is accordingly decided in favour of the applicant and against the management.
9.12 Before parting with this order, it is important to discuss here the maintainability of this application in its present form u/s 33 (C) (2) of the Industrial Disputes Act, even though no specific issue was framed in this regard. This is so as this aspect of maintainability goes to the root of this matter and is a purely legal one.
9.13 It has been the defence of the management since the beginning that the applicant was never its employee and no 'employer-employee' relationship ever existed between them therefore until and unless this disputed question of relationship is adjudicated in a separate claim under s. 2A or s. 10 (4) (A) of the ID Act and a finding is returned in such proceedings, no claim of 'unpaid salary' is LCA No. 565/2016 13 maintainable by the applicant against management under these proceedings under section 33C(2) of the Industrial Dispute Act, 1947.
9.14 Section 33(C) I.D. Act, is reproduced below for proper appreciation of the applicable law:-
"Section 33C : Recovery of Money Due from an Employer -
(1) x x x (2) Where any applicant is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months).
(3) x x x (4) x x x (5) x x x"
In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., (1968) 1 SCR 140 Hon'ble Supreme Court highlighted the ambit and scope of section 33C(2) of the Industrial Disputes Act and made following pertinent observations:-
"It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial applicant and his employer..."LCA No. 565/2016 14
This decision was thereafter followed by Hon'ble Apex Court again in Central Inland Water Transport Corpn. Ltd. v. Workmen (1974) 4 SCC 696. The relevant extract from the judgment is reproduced herein below :-
"12. It is now well-settled that a proceeding under section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a applicant from his employer, or if the applicant is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., it was reiterated that proceedings under 33C (2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial applicant and his employer."
"13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads
(i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a LCA No. 565/2016 15 proceeding under section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under section 33C (2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal that a applicant cannot put forward a claim in an application under section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act."
The law pronounced in the above said judgment has since been consistently followed by the Hon'ble Supreme Court in later decisions. In Municipal Corporation Of Delhi vs Ganesh Razak, 1995 SCC (1) 235 the legal principal on the issue was summed up as LCA No. 565/2016 16 follows :-
" ..where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being, no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
9.15 Applying the above discussed law to the present facts, this court is of the view that, this application is not maintainable in this court. The applicant has claimed that he worked as an employee of management from May, 2005 continuously till May 2009. On the other hand, the Management claimed that it never had any kind of employer-employee relationship with the applicant and thus had no liability to pay any amount to the applicant. In the witness box also both the parties remained firm on their stand regarding the relationship.
9.16 Thus, from the pleadings and the evidence there is apparent dispute on the issue of 'relationship between the applicant and the management' as well as entitlement of the applicant to receive any LCA No. 565/2016 17 amount from the management. There is nothing on record to suggest that prior to filing of the present application, the applicant has ever raised any Industrial Dispute against the management to get the disputed question of relationship as well as entitlement to the benefits claimed by him adjudicated by the competent authority in appropriate proceedings. Therefore it is clear that the applicant has failed to show any pre-existing right as defined in Section 33 (c) 2 of the I.D. Act, 1947 as admittedly there is no earlier adjudication in form of award or settlement or recognition by the employer to the benefits claimed by him. In view of the well settled position of law discussed above, this court doesn't have the jurisdiction to first decide the applicant's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. Therefore, it is held that the present application/ petition filed by the applicant u/s 33-C(2) of the ID Act, 1947 is not maintainable even otherwise on this purely legal aspect also.
RELIEF
10. In view of the findings given in Issue Nos.1, 2 & 3 and the discussion above on the maintainability, the applicant is not entitled to any relief against the management.
11. Considering the findings given in issues above, the application filed by the applicant under Section 33-C (2) of the LCA No. 565/2016 18 Industrial Disputes Act, 1947 is accordingly dismissed.
12. File be consigned to the record room after due compliance.
Announced in the Open Court today on 17th November 2023 MONIKA SAROHA Presiding Officer, Labour Court -2 Rouse Avenue Courts, New Delhi.
LCA No. 565/2016