Delhi District Court
Claimant / vs M/S. Ambassador Sky Chef on 14 December, 2016
Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) No. 747/16
UNIQUE CASE ID No. 02402C0083992007
In the matter of:
Hukum Chand Yadav s/o. Sh. Hiralal Yadav
R/o. Kapas Hara, Dewal.
(sic - to be correct : Kapashera, Delhi).
... Claimant / Workman
Vs.
1. M/s. Ambassador Sky Chef,
IGI Airport Complex, Gurgaon Road,
New Delhi - 37.
2.(*) M/s. Rajpal Singh Rathee & Sons,
242/2, A & B, Yadvindra Estate, Old Delhi Road,
Gurgaon, Haryana.
3.(*) M/s. Sukhmaa Sons & Associates,
Sukhamaa Niwas, Samalkha Old Delhi Road,
New Delhi - 110037.
(As mentioned in the application moved on 16.05.2008 for impleadment of
management no.2 and no.3 as parties herein.)
MEK108, Gali No. 6, BlockK, Old Rangpuri Road,
Mahipalpur Extn., New Delhi - 110037.
(as mentioned in the letter of authority issued in favour of Mr. Deepak Sinha,
Adv. by Proprietor of M/s. Sukhmaa Sons & Associates)
(*){Management No. 2 and No.3 were impleaded as parties vide order dated
19.09.2008 on an application moved by management no.1 on 16.05.2008.}
... Managements
Date of institution : 25.01.2007
Date of reserving for award : 09.11.2016
Date of award : 14.12.2016
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STATEMENT OF CLAIM U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
AWARD
1. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM FILED ON
25.01.2007 UNDER SECTION 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
(i) Claimant had been appointed as 'Driver' on casual basis since 08.11.2004 and he
continued as casual employee since the date of his appointment. The management (M/s.
Ambassador Sky Chef) is continuously employing new drivers off and on till date. The
claimant is seeking regularization of his services as workman is working continuously
with the management since the date of his appointment.
(ii) Claimant was interviewed by General Manager Sh. Murli Krishnan. His driving
test was taken by Transport Manager and Supervisor Sh. Augustian Henry and Sh.
Bharadwaj. The Supervisor signed on the Biodata of the claimant, which was
submitted to Personnel Manager Sh. B. S. Rana by the claimant. The claimant was sent
for medical test and claimant was allowed to work as Driver with Ambassador Sky Chef.
The eyetest, bloodtest, stooltest etc. of the claimant were also carried out at the behest
of Ambassador Sky Chef.
(iii) Claimant joined the management company on 08.11.2004 as Driver. Claimant
was given Airside Driving Permit which was valid upto 31.03.2006. Claimant was also
issued Airport Entry Pass with validity upto 31.12.2006 and his services have been
discontinued w.e.f. 04.11.2006 without any reason or without following the provisions
of Industrial Disputes Act, 1947. Claimant was told that he is being given break in the
service and would be reemployed after few months. This break is being given to him to
deprive him of the benefits granted under Industrial Disputes Act, 1947 as claimant was
worked continuously since 08.11.2004.
(iv) Claimant is not being paid the overtime wages for the overtime hours of work.
Claimant is being paid half the amount for overtime hours of work as against the
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Standing Orders, Rules and practice in Ambassador Sky Chef and all other similar
catering services. Claimant is being asked to work for 16 to 18 hours per day or
claimant is otherwise threatened that his services would be terminated, if claimant will
not work for such long hours.
(v) Claimant is not being given casual leaves, earned leaves, sick leaves or other
holidays. Claimant is not being given holiday in lieu of working on National Holidays.
Claimant is not being paid any bonus as is being paid to similarly situated permanent
workers. Claimant is also being denied medical claim. Infact the claimant is being
denied all the facilities which are being granted to similarly situated permanent workers.
Claimant was asked to sign on blank papers and if refused, claimant was threatened with
the consequences of terminating (sic.) his services.
(vi) The Ambassador Sky Chef is pressuring the claimant to use the Identity Card
issued by some contractor though in the past the identity card was issued by Ambassador
Sky Chef and they have been taken back recently.
(vii) Workman is entitled to get equal pay for equal work at par with other regular /
permanent utility worker and, further, regularization of his services with Ambassador
Sky Chef from the date of his joining as he has been continuously working without even
break of a single day since his employment.
(viii) Management (M/s. Ambassador Sky Chef) has illegally discontinued his services
during the pendency of the Industrial Dispute and the claimant is entitled to be
reinstated. He is unemployed and is finding it very difficult to make both their ends
meet. The claimant is living in rented premises and claimant have school going
children. The claimant has been victimized for having raised Industrial Dispute for
regularization of his services.
With these averments, workman prayed for directing the management, (a) to
reinstate the claimant with back wages and continuity in service and other consequential
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benefits; (b) to regularize the services of claimant workman as permanent workmen with
the Ambassador Sky Chef from the date of his joining and to pay him the same salary
and other benefits as are being given to permanent employees doing the same work and
for same hours of working and (c) to pay the arrears of wages at par with regular /
permanent alongwith bonus, earned leave and other benefits to the claimant in his favour
and against the management.
2. CASE OF MANAGEMENT M/S. AMBASSADOR SKY CHEF AS
PLEADED IN WRITTEN STATEMENT OF DEFENCE
PRELIMINARY OBJECTIONS:
Management took certain preliminary objections such as that (i) there exists no
relationship of employer and employee or privity of contract between claimant and the
management. The claimant, to the knowledge of management, might be an employee of
independent contractor whose services had been hired by the management.
Management is duly registered under the Contract Labour (Regulation & Abolition) Act,
1970 as principal employer and the contractor who provide the manpower had licence
from the Authority in the prescribed under the said Act; (ii) claim filed by the claimant
is not maintainable for non - joinder of necessary party inasmuch as claimant has not
impleaded the employer under whom claimant was employed; (iii) this court lacks
territorial jurisdiction to adjudicate the present claim as the establishment of the
management is not situated within the territorial jurisdiction of this Court as per
notification dated 15.09.2006; (iv) the relief claimed in the statement of claim cannot be
a subject matter of section 2A of the Industrial Disputes Act, 1947 in so far as relief of
regularization and the payment of wages at par with regular employee, as made in para.
(a), (b), (c) of the prayer clause is concerned. This could at best be a subject matter of
section 2 (k) which requires espousal and cannot be adjudicated in the present
proceedings; (v) provision of filing of direct case under section 10 (1) (4) [sic.to be
correct 10(4A)] of the Industrial Disputes Act, 1947 is applicable only when there is
action of dismissal, discharge, retrenchment or otherwise termination of services of
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workman by employer. In the present case no dispute under section 2A at all has arisen
for want of relationship of employer and employee between the parties; (vi) there is no
proper and valid demand raised by the claimant and rejection thereof by the management
to constitute industrial dispute; (vii) claim is neither signed nor verified as per law and,
hence, merits rejection on this ground alone and (viii) no cause of action has arisen to
revoke the section 10 (1) (4) [sic.to be correct 10(4A)] of the Industrial Disputes Act,
1947 since no industrial dispute as defined under section 2A has arisen.
ON MERITS:
Management M/s. Ambassador Sky Chef in its WS denied the case as pleaded by
workman in the statement of claim in toto and pleaded that claimant might have been the
employee of some independent contractor who was awarded labour contract by the
management (M/s. Ambassador Sky Chef). As pleaded there is no justification in
seeking regularization of services as claimant has never been the employees of this
management. Also management pleaded that averments relating to medical tests of
claimants have nothing to do with the alleged relationship of claimant with the
management. The management is a food industry providing catering service to the
passengers of various national and international flights and, as such, medical fitness of
regular employees and employees deployed by independent contractor is of prime
concern. Every person may he be regular employee of the management or contractor's
employee deployed by contractor to perform duties with the establishment of the
management has to undergo medical fitness test. Management denied the averment of
the workman that medical test of the claimant was conducted at the behest of the
management. The claimant might be an employee of independent contractor for all
practical purposes. He was the pay master of the claimant. He was having separate PF
and ESI code no. allotted by concerned departments for his employees. Management
denied that Airport Entry Pass and Daily Permit were issued to the claimant as an
employee of management by the Bureau of Civil Aviation. Such things have nothing to
do with the alleged relationship of claimant with the management as claimant might
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have been employed by an independent contractor. There was no question of
discontinuation of services of claimant or claimant being given break in service for want
of relationship of employer and employee between the parties. The claimant has
fabricated the whole story to support a frivolous claim. There was no question for
payment of overtime to the claimant by the management as he was not its employee. The
claimant was neither asked to work overtime nor he was given threats as alleged.
As the claimant was not the employee of the management there was no question
of his being provided casual leave, earned leave, sick leave, any kind of holidays, bonus,
medical claim by the management. There was no question of his being asked to sign on
any blank papers or for being given any kind of threat as alleged. Management pleaded
that it never issued any identity card to the claimant. Claimant was not employee of the
management rather he might be employee of some independent contractor. The
claimant was not an employee of the management, as such, the question for payment to
him at par with a regular employee does not arise. The claimant was not an employee of
management, as such, there was no question of discontinuation of services of the
claimant by the management. There was no question of industrial dispute being pending
between the claimant and management for want of relationship of employer - employee
between the parties. Claimant is not entitled for reinstatement with the management.
There was no question for victimization for lack of relationship of master and servant
between the parties. Management also denied the averment that claimant is unemployed.
At last management prayed for dismissal of claim filed by the workman.
3. REJOINDER
The workman filed rejoinder to the written statement filed by M/s. Ambassador
Sky Chef wherein workman denied the averments made M/s. Ambassador Sky Chef and
reaffirmed the averments made by him in statement of claim.
4. ISSUES
Vide order dated 16.05.2007 following issues were framed:
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(i) Whether there existed any relationship of workman and employer
between the parties? OPW
(ii) Whether the claim of the workman is not maintainable for nonjoinder of
the necessary parties.
(iii) Whether this labour court has jurisdiction to entertain and adjudicate the
present dispute? OPW
(iv) Whether the relief claimed is not maintainable in view of the objections
no. 4 & 5 in WS? OPW
(v) Whether the claim of the workman is not maintainable in view of
preliminary objection no.8 in W.S? OPM
(vi) Whether the demand notice is served upon the management as alleged in
para no.3 in the statement of claim? OPW
(vii) To what relief, if any, is the workman entitled from the management?
OPW
Issue no.3 pertained to jurisdiction was treated as preliminary issue.
5. WORKMAN'S EVIDENCE
On 19.09.2007 workman filed affidavit in evidence with documents. On
14.11.2007 workman filed additional affidavit with documents regarding jurisdiction
and with the consent of Authorised Representatives of the parties it was decided, since
evidence is to be led on jurisdiction issue so evidence of all issues shall be taken
together and all the issues shall be decided altogether.
6. APPLICATION OF WORKMAN FOR LEADING SECONDARY EVIDENCE
Vide order dated 18.01.2008 workman moved an application for leading
secondary evidence. This application remained undecided throughout. On 15.01.2016 it
was noticed that this application alongwith two other applications moved by workman
on 22.02.2008 were pending adjudication. Management filed reply to this application on
11.07.2016. This application was disposed off by the Court on 25.07.2016 by passing
the following order:
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"ORDER
25.07.2016
1. This order shall dispose off an application moved on 18.01.2008 by workman to allow
claimants to lead secondary evidence in case management does not produce original documents
as demanded by claimants.
In the application applicant / claimant / workman pleaded that claimant had sent notice
under Order 11 Rule 16 CPC for production of following documents:
Sl. No. Particulars
(i) Application of issue of Air field driving permit dated 12.02.2005.
(ii) Airport Entry Pass surrendered to the management on 08.11.2006.
(iii) Airport Entry Pass issued on 27.04.2006.
(iv) Duty Roaster of Drivers dated 16.07.2006, 01.08.2006, 16.08.2006.
(v) Attendance Register for the month of July, 2005.
(vi) Airport Entry Pass valid upto 31.03.2006 and 31.12.2007.
(vii) Daily Entry Pass dated 22.03.2005 and 01.05.2006.
(viii) Airside Driving Permit with validity upto 21.04.2005 and 31.03.2006.
and same has been served upon management as well as on their authorized representative.
Neither any reply has been sent nor documents supplied by management.
2. Managements filed reply to this application on 11.07.2016 pleaded that application is
false and frivolous has the claimant is very well aware of the fact that documents as demanded
by claimant were never issued by the managements nor are in possession of the management
and, as such, question of leading secondary evidence to prove the same does not arise as the
claimant could have filed appropriate application to summon the record from proper
authorities. Also, managements pleaded that application is liable to be dismissed as conditions
mentioned in section 65 of the the Industrial Disputes Act, 1947 are not fulfilled in this case.
3. I have heard Mr. Rahul Pandey, Adv. for workman and Mr. Saumitra Singhal, Adv. for
all the managements and gone through material available on judicial file carefully.
4. It is noteworthy that final arguments in this case were heard on 21.11.2015 and vide
order dated 15.01.2016 it was noticed that application in hand, alongwith other two
applications, had not been disposed of. Vide separate detailed order of even date an application
moved on 22.02.2008 by workman for direction to M/s. Ambassador Sky Chef to produce the
original documents which are in their possession stands dismissed. In this case WE was closed
by ld. ARW on 03.10.2012 without seeking disposal of application in hand. Infact application in
hand should have been pressed for adjudication by workman at the initial stage of WE itself but
workman it was not so done by workman. Managements have already led their evidence and
ME stood closed on 17.09.2014 as prayed for by ld. Counsel for managements. Allowing this
application shall amount to reopening the case for fresh trial.
In my considered opinion, in the totality of the facts and circumstances of this case,
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application in hand merits dismissal and same is hereby dismissed.
5. NOTHING EXPRESSED HEREIN SHALL TANTAMOUNT TO EXPRESSION OF MY
OPINION ON MERITS OF ANY ASPECT LEGAL OR FACTUAL ARISING WHILE PASSING
THE FINAL AWARD."
7. APPLICATIONS OF MANAGEMENT MOVED ON 22.02.2008.
On 22.02.2008 management moved two applications (i) Application u/s. 10(4) of
the Industrial Disputes Act, 1947 for interim orders/relief during pendency of industrial
dispute and (ii) Application for direction to M/s. Ambassador Sky Chef to produce
original documents which are in their possession. FIRST application u/s. 10(4) was
disposed off as not pressed vide order dated 22.03.2016. SECOND application was
disposed off vide order dated 25.07.2016 which reads as under:
"ORDER
25.07.2016
1. This order shall dispose off an application supported with affidavit dated 21.02.2008
moved on 22.02.2008 by workmen for direction to M/s. Ambassador Sky Chef to produce the
original documents which are in their possession:
Sl. No. Particulars
(i) Appointment letter w.e.f. 15.04.2006
(ii) Application of Issue of Air field driving permit dated 12.02.2005.
(iii) Airport Entry Pass surrendered to the management on 08.11.2006.
(iv) Airport Entry Pass issued on 27.04.2006.
(v) Duty Roaster of Drivers dated 16.07.2006, 01.08.2006, 16.08.2006.
(vi) Attendance Register for the month of July, 2005.
(vii) Airport Entry Pass valid upto 31.03.2006 and 31.12.2007.
(viii) Daily Entry Pass dated 22.03.2005 and 01.05.2006.
(ix) Medical report of claimant by Surya Diagnosis
(x) Airside Driving Permit with validity upto 21.04.2005 and 31.03.2006.
2. Management filed reply to this application on 22.03.2016.
3. I have heard Mr. Rahul Pandey, Adv for workman and Mr. Saumitra Singhal, Adv for
all the managements and gone through material available on judicial file carefully.
4. In its reply management no.1 has pleaded that it had hired the services of workman
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through a Contractor and, as such, question of management no.1 being in possession of
documents at sr. no. (i) to (v) and (vii) to (x) does not arise. It further pleaded that these
documents were either issued by Airport Authorised / Contractor.
Also management no.1 has pleaded that management no.1 being a principal employer
used to maintain the attendance register and, as such, original of the same for the May, 2005 is
being annexed as Annexure - A. It is noted that vide order dated 11.07.2016 Mr. Hari Chand,
ARM1 had brought with him Muster Roll for the period from April 2005 to March 2006 and the
same was offered for inspection to the workman as well as ld. Counsel for workman.
Further, vide order dated 11.07.2016 ld. Counsel for managements submitted that the
document at Sr. No.(iv):Duty Roaster of 16.07.2006, 01.08.2006 and 16.08.2006 cannot be
produced as it is very old record. In this regard on 21.07.2016 affidavit of Mr. Hari Chand was
filed.
In the course of arguments ld. Counsel for workman submitted that as per WS of the
management no.2, management no.2 has pleaded that Airport passes and Airside Driving
Permit were given to the claimant / workman by management no.1 as he was required to drive
in sensitive area. Further ld. Counsel for workman has submitted that on the documents
produced by the workman name of management no.1 is mentioned and name of management
no.2 is not mentioned.
Ld. Counsel for managements had submitted that management no.1 not being the
issuing authority with regard to documents at Sr. No. (iii), (iv), (vii) (viii) and (x), management
no.1 cannot be asked to produce these documents. Further ld. Counsel for managements
submitted that these documents were issued by Airport Authorities and could very well have the
summoned from the said Authority during the course of workman evidence. Further ld. Counsel
for the managements submitted that application in hand merits dismissal inasmuch as WE was
closed by ld. ARW on 03.10.2012 without seeking disposal of application in hand. Also ld.
Counsel for managements submitted that as per workman original documents were in
possession of workman at some point of time and there is no proof of workmen surrendering
these documents and mere saying that workmen surrendered these documents is no proof of
such assertions.
It is noteworthy that final arguments in this case were heard on 21.11.2015 and vide
order dated 15.01.2016 it was noticed that application in hand, alongwith other two
applications, had not been disposed of. In my considered opinion directions for production of
records can be given to management no.1, if and only if, management no.1 is admittedly in
possession of such records. It is noteworthy that all the parties have already led evidence which
they intended to lead. Effect of non producing of records by any of the parties can be
considered by the Court while passing the final award keeping in view the totality of the facts
and circumstances of this case as they are made out on the basis of material available on
judicial file. In my considered opinion, in the totality of the facts and circumstances of this case,
no directions as prayed for deserves to be given to the management no.1.
5. NOTHING EXPRESSED HEREIN SHALL TANTAMOUNT TO EXPRESSION OF MY
OPINION ON MERITS OF ANY ASPECT LEGAL OR FACTUAL ARISING WHILE PASSING
THE FINAL AWARD."
8. APPLICATION OF MANAGEMENT UNDER ORDER I RULE 10 OF CPC
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FOR IMPLEADING OTHER MANAGEMENT AS PARTY.
On 16.05.2008 M/s. Ambassador Sky Chef moved an APPLICATION FOR
IMPLEADING NECESSARY PARTIES IN THE ARENA OF OTHER
RESPONDENTS. Workman filed reply to this application. Vide order dated
19.09.2008 this application was allowed.
9. CASE OF MANAGEMENT M/S. RAJPAL SINGH RATHEE & SONS MANAGEMENT NO.2 AS PLEADED IN WRITTEN STATEMENT OF DEFENCE As alleged, the management no.2 is engaged in the business of providing man power to the various managements and for that purpose the answering management is registered under the provisions of the CLRA Act and has got valid license for the said purpose. It provides the manpower to the management no.1 also, which is also registered under the provisions of CLRA Act to hire the contract labour. Management no.2 pleaded that concerned workmen were (sic.) lastly working with the answering management and were deputed to work with management no.1 under the direct control and supervision of the answering management, which was marking their presence, paying the salary and other legal benefits. All the workmen, who were (sic.) hired by the answering management, were (sic.) duly covered under the provisions of ESI and EPF Act and the contribution towards these schemes were being deposited by the answering management after deducting from their salary. The answering management entered into contract with the management no.1 since 01.04.2005. The workman (sic) concerned have raised the present dispute for regularization of their (sic) services with the management no.1 (i.e. Ambassador Sky Chef) falsely alleging that they were being employed by the management no.1 (i.e. Ambassador Sky Chef) and were working under the direct control and supervision of management no.1 (Ambassador Sky Chef) by filing present statement of claim. Management no.2 pleaded that some of the claimants (sic) were initially engaged by the answering management and were deputed to work with the management no.1 and management no.2 admitted that the claimants were sent for the Page 11 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 medical examination by the management no.1. As per management no.2 claimant was initially engaged by the answering management on 20.04.2006 and claimant worked with the answering management in different periods and lastly worked upto 01.11.2006 only. The workman for the reasons best known to him did not come forward to join the duties and abandoned his job. The management no.2 is still ready to take them back on duty for some other assignments if they so desire. As far as the issuance of the airport entry passes and daily permit is concerned, claimant was given the airport passes and airside driving permit by the management no.1 and, as they were required to drive in the sensitive area, their movements were strictly regulated by the Bureau of Civil Aviation and, hence, each and every employee was required to have these passes and permits by the agency and such passes are issued to the recognized agency only i.e. to management no. 1. Management no.2 pleaded that the claimants were paid the overtime wages whenever their services were taken over and above the duty hours by the answering management. The claimant was given all the legal benefits for which he was entitled to as per the law. At last, management no.2 pleaded that workman has not worked for 240 days preceding the date of the alleged termination or in any calendar year and, hence, he is not entitled to the relief claimed.
10. CASE OF MANAGEMENT OF M/S. SUKHMAA SONS & ASSOCIATES MANAGEMENT NO.3 AS PLEADED IN WRITTEN STATEMENT OF DEFENCE As alleged, the management no.3 is engaged in the business of providing man power to the various managements and for that purpose the answering management is registered under the provisions of the CLRA Act and has got valid license for the said purpose. It provides the manpower to the management no.1, which is also registered under the provisions of CLRA Act to hire the contract labour. Management no.2 pleaded that claimant was engaged by the answering management and deputed to work with management no.1 under the direct control and supervision of the answering management which was marking his presence, paying the salary and other legal benefits. The workman was hired by the answering management and was duly covered under the Page 12 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 provisions of ESI and EPF Act and the contribution towards these schemes were being deposited by the answering management after deducting from his salary. The answering management had contract with the management till June, 2006 and, thereafter, contract was not renewed. All the workmen had settled their full and final with the answering management and the left the services. As per management no.2 workmen have raised the present dispute for the regularization of their services with the management no.1 falsely alleging that they were being employed by the management no.1 and were working under the direct control and supervision of them by filing statement of claim before the Conciliation Officer. Management no.3 pleaded that workman was working with the answering management and deputed to work with the management no.1. Management no.3 admitted that the claimants (sic) were (sic) sent for the medical examination by the management no.1. As alleged that the claimant was initially engaged by the answering management on 08.11.2004 and worked with the answering management in different periods and lastly worked upto 12.11.2005 only. As far as the issuance of the airport entry passes and daily permits are concerned the claimant was given the airport passes and airside driving permits by the management no.1 and, as they were required to drive in the sensitive area, their movements were strictly regulated by the Bureau of Civil Aviation and, hence, each and every employee was required these passes and permits by the agency and such passes are issued to the recognized agency only i.e. to management no. 1. Management no.3 pleaded that the claimants were paid the overtime wages whenever their services were taken over and above the duty hours by the answering management. The claimants were given all the legal benefits for which they were entitled to as per the law.
11. REJOINDERS The workman filed separate rejoinders to the written statements filed by management no.2 and no.3 wherein workman denied the averments made by these managements and reaffirmed the averments made by him in the statementofclaim.
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12. ADDITIONAL ISSUES
Vide order dated 30.04.2009 from the pleadings of Written Statements of management no.2 and 3, and rejoinders of the workman to the same following additional issues were reframed by ld. predecessor of this Court:
(i) Whether the claimant was the workman of management no.3 M/s.
Sukhma Sons & Associates during the period 8.11.2004 to 12.11.2005? OPM3
(ii) Whether the claimant was the workman of management no.2 M/s. Rajpal Rathi & Sons during the period 20.4.2006 to 1.11.2006? OPM2
(iii) Whether the claimant himself abandoned his job with management no.2?
OPM2
(iv) Relief.
13. EVIDENCE
Workman appeared in the witness box as WW1 Hukam Chand Yadav and tender his examination in chief vide evidence affidavit Ex.WW1/A. Workman relied upon documents namely Mark - WW1/1 - Application of issue / renewal of Airfield Driving Permit; Mark - WW1/2 - Surrender of AEP for replacement; Mark - WW1/3
- Issue of temporary AEP; Mark - WW1/4 (Colly. 16 pages) - Duty Roaster - Drivers w.e.f. 16.07.2006.
Workman in his cross examination was confronted with documents Mark WW 1/M1 - Salary Sheet for the month of April, 2005; Ex. WW1/M2 - Airside Driving Permit Card of Hukum Chand; Ex. WW1/M31 - Account opening form of Hukum Chand; Ex.WW1/M21 - Appointment through Contractor; Ex.WW1/M22 - Appointment Letter and Mark - WW1/M23 - Register of Payment of Wages. WE was closed on 03.10.2012 by ld. counsel for workman.
Management No.1 examined MW1 Mr. Hari Chand, Asst. Manager (Liaison) with management no.1 and tendered his examinationinchief vide affidavit Ex.MW1/A and relied upon documents namely Ex. MW1/1 - Letter of Authority; Ex. MW1/2 (Colly. 4 pages) - Appointment Letter; Ex. MW1/3 (Colly. 4 pages) -
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Certificate of Registration; Ex. MW1/4 (Colly. 2 pages) - Muster Roll.
Management No.2 examined MW2 Mr. Sajjan Singh, Supervisor with management no.2 and tendered his examinationinchief vide affidavit Ex.MW2/A and relied upon documents namely Ex. MW2/1 - Letter of Authority; Ex. MW2/2 (Colly.) Licence; Ex. MW2/3 - Register of Payment of Wages; Ex. MW2/4 - Airside Driving Permit of workman.
Management No.3 examined MW3 Mr. Prem Shankar Dubey, Supervisor with management no.2 and tendered his examinationinchief vide affidavit Ex.MW 3/A and relied upon documents namely Ex. MW3/1 Letter of Authority; Ex. MW 3/2 (Colly.) Licence; Ex. MW3/3 - Salary Sheet for the month of April, 2005; Ex. MW3/4 - Airside Driving Permit of workman.
Management No.1 also examined MW4 - Mr. Raj Kumar Saini, Dealing Clerk from ESIC, Local Office Palam, Near Ramphal Chowk, Sector - 7, Dwarka, New Delhi - 110075 and relied upon documents namely Ex. MW4/1 - Declaration Form .
Management No.1 also examined MW5 Mr. J P Bindra, Dealing Clerk from EPFO, (RO - Delhi - North) Bhavishya Nidhi Bhawan, 28, Community Center, Wazirpur Industrial Area, Delhi - 052 and relied upon documents namely Ex. MW 5/1 - Form No. 9 (Revised) and Ex. MW5/2 - Status Report. ME was closed on 17.09.2014 as ld. counsel or managements submitted that no further ME is to be led by managements.
14. ARGUMENTS I have heard Mr. Rahul Pandey, Adv. for workman and Mr. Saumitra Singhal, Adv. for all the managements. Ld. counsel for workmen relied upon case laws reported as (i) International Air Cargo Workers Union Vs. International Airport Authority of India 2001 LawSuit(Mad) 893; (ii) Sakharam Govind Kadam Vs. David Brown Greaves Ltd. 1999 LawSuit (Bom) 703; (iii) E. Krishna and Others Vs. Director General, Indian Page 15 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 Council of Medical Research and Another 1993 II LLJ - 239; (iv) Steel Authority of India Limited Vs. Gujarat Mazdoor Panchayat 2003 LawSuit(Guj)529 and (v) Govt. School Teachers Association (Migrants) Regd. & Ors. Vs. Union of India & Ors. WP (C) 3989/2010 decided on 18.05.2015 by Hon'ble Mr. J. Rajiv Shakdher Judge, Delhi High Court.
Ld. counsel for managements relied upon case laws reported as (i) Bareilly Electricity Supply Co. Ltd. Vs. The Workmen and Ors. AIR 1972 SC 330; (ii) Award passed in DID No. 288/14 titled as Hari Om Vats & ANR. Vs. M/s. Ambassador Sky Chef on 30.09.2015 by this Court; (iii) Range Forest Officer Vs. S. T. Hadimani 2002 (1) SCR 1080; (iv) Workmen of the Food Corporation of India Vs. M/s. Food Corporation of India AIR 1985 SC 670; (v) Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Anr. Appeal (Civil) 5969/2004 Decided on 13.09.2004 by HMJs Arijit Pasayat & C. K. Thakker Judges Hon'ble Supreme Court of India; (vi) The Agricultural Produce Market Vs. The Weighmen's Association Decided on 29.05.2006 by HMJ N. Kumar Judge, Hon'ble Karnataka High Court; (vii) M. P. Electricity Board Vs. Hariram Appeal (Civil) 2240 / 2001 Decided on 27.09.2004 by HMJs N. Santosh Hegde & S. B. Sinha Judges, Hon'ble Supreme Court of India; (viii) Deena Nath & Ors. Vs. National Fertilizers Ltd. & Ors. AIR 1992 SC 457; (ix) Municipal Corporation. Faridabad Vs. Siri Niwas Appeal (Civil) 1851/2002 Decided on 06.09.2004 by HMJs N. Santosh Hegde & S. B. Sinha Judges, Hon'ble Supreme Court of India; (x) Chand Fertilizers Vs. Labour Commissioner, Fertilizer 2006 (3) AWC 2254 and (xi) Municipal Corporation of Greater Bombay Vs. Shramik Sangh and Ors. Material on judicial file perused. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
15. MY ISSUEWISE FINDINGS ARE UNDER: ISSUE No.1 (as framed on 16.05.2007).
Whether there existed any relationship of workman and employer between the parties?
OPW
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ADDITIONAL ISSUES AS FRAMED ON 30.04.2009
ISSUE No.1
Whether the claimant was the workman of management no.3 M/s. Sukhma Sons & Associates during the period 8.11.2004 to 12.11.2005? OPM3 ISSUE No.2 Whether the claimant was the workman of management no.2 M/s. Rajpal Rathi & Sons during the period 20.4.2006 to 1.11.2006? OPM2 ISSUE No.3 Whether the claimant himself abandoned his job with management no.2? OPM2 All these issues, being interconnected, are being taken up under a common discussion. HERE, case of workman is that he worked with management no.1, M/s. Ambassador Sky Chef, since 08.11.2004 and his services were discontinued w.e.f. 04.11.2006.
On the other hand case of management no.1, M/s. Ambassador Sky Chef, is that there did not exist relationship of employer and employee between management no.1 and the claimant, and claimant might have been an employee of independent contractor whose services had been hired by management no.1 (M/s. Ambassador Sky Chef).
Management no.2, M/s. Rajpal Singh Rathee & Sons, has taken the stand that claimant was initially engaged by it/him on 20.04.2006 and claimant worked in different periods and lastly worked upto 01.11.2006 only. As per management no.2 the workman for reasons best known to him did not come forward to join the duties and abandoned his job, and management no.2 is still ready to take him back on duty for some other assignments if he so desires. Further, as per management no.2 claimant was deputed to work with management no.1 under the control and supervision of management no.2, which was marking his presence, paying the salary and other legal benefits.
As per management no.2 claimant was covered under ESIC and EPF Act and contribution towards these schemes were being deposited by management no.2 after Page 17 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 deducting from his salary.
As per management no.3 the claimant was initially engaged by management no.3 on 08.11.2004 and worked with it in different periods and lastly upto 12.11.2005. As alleged claimant had settled his full and final with management no.3 and left the services. Management no.3 also pleaded that claimant was deputed to work with management no.1 under the direct control and supervision of management no.3, which was marking his presence, paying the salary and other legal benefits. Management no.3 further pleaded that claimant was covered under ESI and PF.
NOW it is settled proposition of law that initial onus is on the claimant to prove the case, as pleaded by him in the statement of claim, on judicial file by leading cogent and convincing evidence on the touchstone of principle of preponderance of probabilities. All the documents relied upon by the claimant (i.e. Mark WW1/1 to Mark WW1/4) cannot be taken to have been proved by claimant on judicial file. These documents do not help the claimant to prove the case as pleaded by him in the statement of claim. Workman/WW1 Mr. Hukum Chand in his crossexamination has deposed he does not have any documentary proof that he was interviewed by Mr. Murli Krishana. He further deposed that he has no proof that his driving test was taken by Sh. Augustin and Sh. Bhardwaj of management no.1. He also deposed that he has no proof that his biodata was submitted by Sh. Bhardwaj, Supervisor of management no.1, Sh. S. B. Rana Personnel Manager. He further deposed that he has no documentary proof to show that management no.1 employed him as its driver since 2004. He has further deposed that he never signed on any salary sheet, payment record, overtime payment register maintained by management no.1. Further as per crossexamination of workman/WW1 Mr. Hukum Chand he did not complain regarding his grievances, as pleaded in statement of claim, against the management no.1. CONTRARY TO AVERMENTS MADE IN STATEMENT OF CLAIM, workman/WW1 Mr. Hukum Chand in his cross examination deposed that he was not issued any identity card by management no.1. He also deposed that he cannot produce any document to show that he was working under Page 18 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 supervision and control of management no.1. THUS, WORKMAN CAN BE SAID TO HAVE FAILED TO PROVE HIS CASE, AS PLEADED IN STATEMENT OF CLAIM, AGAINST MANAGEMENT NO.1.
Claimant has admitted his signatures on Ex. WW1/M21 and Ex. WW1/M22 which documents pertain to management no.2 (M/s. Rajpal Singh Rathee & Sons). Further he has, in the course of crossexamination by management no.2 and 3, deposed that ESI and PF facilities were extended to him. Further he has admitted that he maintained salary account with Bank of Baroda vide account opening form Ex. WW1/M31 and his salary was transferred by management no.3 in the said account. Nothing favourable to workman came out during the crossexamination of MW1 Mr. Hari Chand. Contrary to case of workman, it has been suggested to MW2 Mr. Sajjan Singh that M/s. Rajpal Singh Rathee and Sons terminated his services illegally. Similarly MW3 Mr. Prem Shanker Duby has been suggested that M/s. Sukhma Sons and Associates terminated the services of claimant illegally. These two suggestions in a way support the case as pleaded by management no.2 and 3. Further MW4 Mr. Raj Kumar Saini from ESIC deposed that as per Ex. MW4/1 he can say that claimant/Hukum Chand Yadav S/o Sh. Hira Lal was an employee of M/s. Sukhma Sons & Associates and his date of appointment was 8.11.2004. Similarly, MW5 Mr. J.P. Bindra from EPFO deposed that as per Ex. MW5/1 and Ex. MW5/2 he can say that claimant was an employee of M/s. Sukhma Sons & Associates. As per Ex. MW5/1 claimant left the services on 11.11.2005 and he has withdrawn his PF and EPS with "Status:Settled".
In view of above detailed discussion it can be said that claimant has failed to prove his case against management no.1 as pleaded by him in the statement of claim and management no.2 and 3 have been, on the basis of principle of preponderance of probabilities, successful in proving their stands on judicial file.
HERE workman was employed as Driver. This nature of work is not mentioned in the registration certificate of management no.1 or licences of management no.2 and 3 for the relevant period. But this fact is inconsequential inasmuch as by reason abovesaid Page 19 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 fact only it cannot, in the facts and circumstances of this case, said that claimant would be taken to have become an employee of management no.1. Conducting of medical tests by management no.1, if really so, also by itself does not establish the existence of relationship of employer and employee between claimant and management no.1. Circumstances under which Airport Entry Pass and Airside Driving Permit happened to be issued by mentioning the name of management no.1 have been well explained by managements and existence of name of management no.1 on these documents by itself, in the facts and circumstances of this case, does not help the workman in any manner to prove the case as pleaded by him in statement of claim.
Claimant Mr. Hukum Chand in his crossexamination has deposed that he has no concern with management no.2 and 3 and he has only concern with management no.1. Further he has deposed that he does not want any relief from management no.2 or 3 and he does not want to work with management no.2 or 3 even if any offer is made to him. In these circumstances additional Issue no.3 as framed on 30.04.2009 is deleted as redundant. Issues no.1 and additional Issues no. 1 and 2 as framed on 30.04.2009 are decided against the workman and in favour of managements.
ISSUES AS FRAMED ON 16.05.2007 ISSUE No.2 Whether the claim of the workman is not maintainable for non joinder of the necessary parties?
Vide order dated 19.09.2008 managements no.2 and 3 were impleaded as parties to present proceedings. Thus, issue has lost its significance. Ordered accordingly.
ISSUE No.3 Whether this labour court has jurisdiction to entertain and adjudicate the present dispute? OPW This case was initially filed before Labour Court XII. Vide Addendum No. F.25(1)/Sectt./Lab/06/6116 dated 23.08.07, Police Station areas of PS Mahipalpur fall under the jurisdiction of Labour Court XII. Thus, Labour Court XII had the jurisdiction Page 20 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 to entertain and adjudicate the present dispute. Issue is decided against the management.
ISSUE No.4 Whether the relief claimed is not maintainable in view of the objections no.4 & 5 in WS? OPW This case has been filed u/s.2A of the Industrial Disputes Act, 1947. Prayer (b) and (c) of the workman are obviously out of the scope of provisions of section 2A. But issue as regards illegal termination of his services by management falls within the scope of section 2A. Issue is decided accordingly.
ISSUE No.5 Whether the claim of the workman is not maintainable in view of preliminary objection no.8 in W.S? OPM It has already been held that workman has failed to establish on judicial file the case as pleaded by him against management no.1. Thus, there was no cause of action in favour of workman and against management no.1. Issue is accordingly decided in favour of management.
ISSUE No.6 Whether the demand notice is served upon the management as alleged in para no.3 in the statement of claim? OPW Issue appears to have been framed inadvertently inasmuch as in para.3 of the statement of claim it has not been alleged that workman served any demand notice upon the management. Also, in my considered opinion, serving of demand notice is not an essential for raising an industrial dispute u/s. 10(4A) r/w. Section 2A of the Industrial Disputes Act, 1947 as the said requirement is not spelled out in this section of law. Issue is deleted as redundant.
ISSUE No.7 To what relief, if any, is the workman entitled from the management? OPW In view of my above findings on various issues, claimant/workman Mr. Hukum Page 21 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.12.2016 Hukum Chand Yadav Vs. M/s. Ambassador Sky Chef & Ors. DID No. 747/16 Chand is held to be not entitled to any relief against any of the managements. Parties to bear their own cost.
16. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
17. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 14.12.2016
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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