Delhi District Court
The vs The on 13 December, 2007
I D No. 332/05 Page 1 of 9
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. :332/2005
BETWEEN
The Workman, Smt. Amrita Bai, D/o Sh. Gainda Ram, C/o Rashtriya
Mazdoor Sandh (Regd) T-44-D, Near Haryanan Dharmshala,
Karampura, New Delhi 110 015
AND
The Management, M/s. Style Boutique, 137, Ground Floor, Udai Park,
Ansal Plaza, New Delhi 110 049
AWARD
1. Direct claim was filed by the claimant against the termination
of Amrita Bai D/o Sh. Gainda Ram, through Rashtriya Mazdoor Sangh
(Regd) T-44-D, Near Haryanan Dharmshala, Karampura, New Delhi
110 015 against the management of M/s Style Boutique arraying its
proprietor/ partner Sh. Gurpreet Singh Thapar and Mrs. Harbans Akaur,
137, Ground Floor, Udai Park, Ansal Plaza, New Delhi 110 049.
2. It is stated therein that the claimant had been employed by the
management since 7.9.03 as a helper at a monthly salary of Rs.3000/-.
As per the claimant, she was working with great honesty and dedication,
never giving any cause of complaint to the management.
3. It is further stated that management had their residence at the
I D No. 332/05 Page 2 of 9
above given address as well as one shop in the name of M/s Style
Boutique from where they used to design ladies suits and sarees etc..
The claimant claims to have been working in the Boutique.
Management was not providing any kind of legal rights and facilities to
the workman and for which she kept demanding verbally but
management kept assuring, without any result.
4. As per claimant, management also with held the salary of the
claimant for the last many months. They were obtaining work from the
claimant at their residence also and were giving her food and clothes but
when one year had passed and claimant again asked for her salary,
management failed to release the same on one pretext or another.
5. Claimant further states that her service had been obtained through
M/s SR Services Industries, 63, Shyam Sudha Associate, West Punjabi
Bagh, New Delhi 10 002. In para 6 of the claim it is the version of the
claimant that she had been engaged from the said service center by the
management for work in the shop as well as in their house as a helper
and thread cutter. Claimant made a complaint with the said service
center about non payment of her salary and also to her relatives and to
press upon the management to pay the same but the reply of the
management was that they were giving food and clothes to the claimants
and shall be paying the salary also soon. As and when claimant shall go
to village, the management promised to release the payment due.
I D No. 332/05 Page 3 of 9
Management ultimately, without issuing any notice, without paying the
earned wages, terminated the service of claimant and when the claimant
asked for notice and for the reason of termination, management refused.
6. Claimant sent a demand notice to the management on 10.8.05.
As per the claimant, she has been victim of unfair labour practice by the
management and victim of illegal and unjustified termination. She
prays for reinstatement with continuity of service and full back wages as
well as earned wages due and all other consequential benefits.
7. Management in their reply has taken several preliminary
objections, mainly being that there was no employer, employee
relationship between the parties i.e M/s Style Boutique and the claimant.
As per the management, claimant was never employed in the Boutique
and was only engaged for personal employment of Sh. Gurpreet Singh
and Harbans Kaur in their house as their domestic servant to look after
the handicap daughter of Mrs. Harbans Kaur and to do other domestic
chores. Besides, salary of the claimant was never paid from the account
of the respondent firm i.e M/s Style Boutique. As such entire claim of
the claimant is stated to be wrong and false. As per the management, claimant worked at their residence as domestic servant for only about 3 months i.e from October, 04 till December, 04 at monthly salary of Rs.1200/- PM only besides boarding and lodging. Admittedly, claimant had been engaged through M/s SR Service Centre, West Punjabi Bagh, I D No. 332/05 Page 4 of 9 New Delhi which provides domestic help.
8. As per the management, it was the claimant who herself abandoned the job after December, 04 by refusing to work with the respondents and by remaining unauthorizedly absent form her work and without any intimation or prior permission.
9. Further it is contended that no industrial dispute can be raised against the respondents as claimant was never employed by said firm and besides the firm has also been closed. Said boutique was a very small establishment having only one tailor to look after entire work of the Boutique.
10. In the rejoinder filed by the claimant, version adopted by the management stands denied and the contents of the claim are reiterated to be correct.
11. On the basis of pleadings, following issues were framed by my Ld. Predecessor:
1. Whether workman was employee of the management and there existed relationship of employer and employee between the parties? OPW
2. Whether services of the workman have been terminated illegally and unjustifiably by the management? OPW
3. Whether the workman is entitled to relief of reinstatement with continuity of service, full back wages and other consequential benefits?
OPW I D No. 332/05 Page 5 of 9
12. Workman examined herself as WW- 1 on her affidavit EX WW- 1/A and also tendered the following documents in her evidence:
1. Copy of demand notice dated 3.10.05 EX WW- 1/1.
2. Postal receipt EX WW- 1/2.
3. Returned envelope EX WW- 1/3.
4. Form of M/s S R Services Centre, EX WW- 1/4.
13. Management on the other hand examined Sh. Gurpreet Singh Thapar, one of the partners as MW- 1 on his affidavit EX MW- 1/A. One document i.e visiting card was produced by MW- 1 during his cross examination i.e EX MW- 1/X1.
14. Arguments were heard at length and during course of arguments certified copy of order from Authority under Shops and Establishment Act was taken on record.
15. Arguments were heard. File perused. I proceed to decide the claim on merits on the basis of material on record and in the light of arguments addressed on behalf of the parties. My findings on each issue are as under:
16. Issue no.1 Burden to prove employer employee relationship lies upon the workman and in order to substantiate her plea, document filed by the claimant EX WW- 1/4 is most crucial.
17. Management has also stated in their WS that they had I D No. 332/05 Page 6 of 9 obtained services of the claimant through M/s SR Service Centre, Man Power Agency. It is common knowledge that the man power supply agencies get requisite forms filled up while providing service of employee. The said form EX WW 1/4 is bearing columns which are of course showing that it is a form used while supplying domestic servants. The different columns requiring information in this form besides name and address, are relating to number of family members, grand father, grand mother, husband, wife, children, sex of children, whether boy or girl, working children, number of rooms in the house, kitchen, dining room, bed room, bathroom etc. At the columns of signatures also, it has shown signatures of family members which are required in this form. From the printed contents of the form, it is absolutely clear that it is the form used for supply of domestic servants.
18. Upon perusal of the employment form EX WW 1/4, same is not bearing name of the management. If what is stated by claimant and WW- 2 is correct, what prevented WW- 2 from obtaining the name of the management on the form and if the name was not on the form, how WW- 2 became aware that Mr. Gurpreet Singh Thapar had taken the claimant to work for M/s Style Boutique. It is quite significant that this entire form is one which is meant of use at the time of supplying domestic servant. In case of person who is to be absorbed in a firm or a company, the mention of family members, grand father, grand mother, I D No. 332/05 Page 7 of 9 husband, wife, number of children, even their sex, age, rooms in the house etc of the employees would not be required to be filled up any way.
19. It is also a fact of great significance that claimant was admittedly from the same village as that of WW- 2 and admittedly WW- 2 knew her since childhood and also that claimatn before the present job resided along with WW- 2 and even after her dis engagement from the respondents, she was admittedly residing along with WW-2. Totality of the testimony of WW- 2 viewed along with form EX WW 1/4 is rendered to be absolutely that of a highly interested witness, who is tutored well to depose in favour of the claimant. It is quite relevant that WW- 2 did not have to be summoned by the court. The totality of her testimony does not inspire any confidence at all.
20. On the contrary, the picture that emerges from the most material document on record which is EX WW 1/4 is that no doubt the claimant was employed by the respondents through the said man power supply agency and for reasons best known to the said WW- 2, the form in question was not got fully filled up like the columns pertaining to working children, whether they were boy or girl, their age, rooms in the house etc etc. It probably was thus clear that such like forms, got half filled up, were intended to be misused to black mail and harass the respondents in case they failed to pay wages or for any other reason. I D No. 332/05 Page 8 of 9
21. It is clear that domestic servant are not covered by I.D.Act and as such they have no remedy when their wages were not paid. The claimant in the present case found a way to teach the respondents a lesson by making out a case that she was working in the Boutique so as to bring her within the purview of Industrial Disputes Act. It has not been explained any where by WW- 2 as to why form meant for domestic servant was used for the employment of WW- 1 in an industrial establishment. It has also not been explained by WW- 2 as to why form EX WW 1/4 was not got filled in completely.
22. As regards order from the Authority of Shops and Establishments Act, dated 7.7.06, same was passed on exparte proceedings. However there were no findings as such in the said order which could be treated to be binding. In the present case both the parties are before this court and infact the very document before this court placed, produced and relied upon by the workman herself has belied the entire story of the claimant.
23. In view of above discussion claimant has miserably failed to establish that she was an employee of management M/s Style Boutique. On the other hand, there is contrary positive evidence that the claimant was only a domestic help, obtained from the agency and no more. Issue no.1 is decided against the claimant and in favour of the management.
24. Issue no.2 I D No. 332/05 Page 9 of 9 In view of my findings on issue no.1 above, it is clear that since claimant was not an employee of the management, there was no question of termination, illegal or unjustified, by the management. Issue no.2 is also decided against the claimant and in favour of the management.
25. Issue no.3 Evidently the claim as filed is not even maintainable under I.D. Act and has been a gross abuse of process of law. With these observations, claimant is held not entitled to any relief under I.D.Act. The claim stands dismissed. Award is passed accordingly. Copy of the award be sent to appropriate Government for publication within 30 days on the receipt of the award from the court. File be consigned to record room.
Announced in open Court
today on 13.12.07 (SUJATA KOHLI)
PRESIDING OFFICER LABOUR COURT II
ROOM NO. 48, KARKARDOOMA COURTS,
SHAHDARA, DELHI