Delhi District Court
Lir No.1261/2016 & Old Id No:212/2013, ... vs . M/S New Delhi Ymca Etc. on 25 February, 2020
1
IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT
ROUSE AVENUE COURTS , NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
LIR No.1261/2016 & Old ID No:212/2013
Sh.Pardeep S/o Sh. Mahidhar Prasad
R/o House No:5508/2, Gali No:115/18.
B Block, Sant Nagar, Burari,
Delhi110084
Through Indian Juris, 771, Pocket No:1,
Paschim Puri, New Delhi110063 .....Workmen
VERSUS
1. Management of M/s New Delhi YMCA.
Jai Singh Road, New Delhi110001
2. M/s Professional, 57, 3rd Floor,
Old Rajender Nagar, Main Market,
New Delhi110060 .....Managements
Date of receipt of Reference : 12072013
Date of Final Arguments : 10022020
Date of Award : 25022020
AWARD
1. The Deputy Labour Commissioner (New Delhi), vide its order No.F.C
57/ALC/NDD/2013/58/295 dated 10072013, referred the present industrial dispute
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc.
2
of workmenherein with the above mentioned management to the Labour Court with
the following terms of reference:
"Whether the services of the workman Sh.Pardeep S/o Sh. Mahidhar Prasad
have been terminated illegally and/or unjustifiably by the management, and if yes,
to what other relief is he entitled?"
2. Notice of the reference was issued to the Workmen and he had filed the
Statement of Claim. Brief facts as stated in the statement of claim are that the
Workmen was working with the Management as permanent employee w.e.f. 0111
2005 as a "Room Waiter" and his last drawn wages was Rs.7,000/ per month. It is
alleged that the though the workman was working with the management no:1,
however, management no:1 was showing in his record that workman was working
with contractor i.e. management No:2, in order to deprive the workman for legitimate
legal facilities. When workman demanded said legal facilities, equal pay and
permanency of his job with management No:1, the management no:1 grew grudges
against the workman and in order to satisfy their ego the management no:1 terminated
the services of the claimant on 19062013, in violation of Industrial Dispute Act,
1947 and against the principles of natural justice. Since the date of his illegal
termination, the workman has been reporting for duty but the management is not
taking him back on duty. The workman stated to have filed statement of claim before
the Conciliation Officer but the management no:1 did not reinstate him and also did
not settle the matter with the workman, therefore, the present reference has been sent
to the labour court by the office of Labour Commissioner. However, it is stated by
workman that before the Conciliation Officer he has been paid his earned wages by
the management no:1 through the management no:2. Hence, the present case. It is
averred that the termination of the Workman by the Management is illegal and he is
unemployed. The Workman has claimed relief of reinstatement with full back wages
along with consequential benefits.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc.
3
3. Notice of the statement of claim was issued to both the Management.
Management no:1 filed its written statement and stated that there is no employer
employee relationship between the claimant and answering management no:1 as he
was never employed by them, therefore, termination of the services of the workman
by the management no:1 does not arise. Management no:1 denied all the allegations
of the workman as alleged in the statement of claim. It is denied that the workman
was working with the management no:1 under their direct supervision. It is also
denied that the claimant was demanding permanency of job from the management
no:1 and equal pay for equal wages or on this account the management no:1 grew
grudges against the claimant and in order to satisfy their grudges, the management
no:1 terminated the services of the claimant on 19062013 in violation of Industrial
Dispute Act and against the principles of natural justice. It is also denied that
answering respondent is required to reinstate the claimant or that claimant is entitled
to any relief against the management no:1. It is also denied that management no:1 has settled the matter before the Conciliation Officer as alleged by the workman. It is submitted that since the claimant was employed by the management no:2, the wages , if any were being paid by the respondent no:2. The management no:1 has denied all other allegations of the workman and prayed that the whole claim of the claimant is may be rejected.
4. The management no:2 has also filed its written statement and it is stated that if the workman wants to join the services with the management no:2 he can join with immediate effect. It is stated that management No.1 awarded the contract of house keeping and maintenance of respondent no:1 preemies to the management no:2 vide agreement dated 19022013. It is submitted the management no:2 engaged the services of the workman but they never terminated the services of the workman. It is stated that the respondent no:1 terminated the agreement with the respondent no:2 vide letter dt. 20052013 w.e.f. 19062013 and respondent no:1 withheld the refundable security of the management no:2 amounting to Rs.4 lacs, for which the respondent no:2 has filed a civil suit No:1062/2014 for the recovery of the said LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 4 amount against the management no:1 which is pending in the court. Management no:2 denied the prayer clause of the workman and prayed that claim of the workman is wrong and may be dismissed against the management no:2.
5. In his replication to the written statement of the managements the workman has reiterated the averments made in the statement of claim and denied the contentions made in the written statement by the managements.
6. From the pleadings of the parties, on 05102015, the following issues were framed for trial: (1) Whether there exist employee employer relationship between the claimant/workman and the management no:1 or not ? OPW (2) Whether the claimant/workman is an employee of management no:2 as alleged by the management no:1 ? OPM (3) Whether the claim of the claimant/workman is maintainable against respondent no:2 ? OPW (4) Whether the respondent no:1 has terminated the contract with respondent no:2 and withheld the security of Rs.4,00,000/ of respondent no:2, for which a civil suit is pending, if so, its effect ? OPM (5) Whether the workman is entitled to the relief claimed in the sttement of claim ? OPW (6) Relief.
7. Workman has examined himself as WW1 and filed his evidence by way of affidavit Ex.WW1/A. Workman has reiterated the whole contents of his statement of claim in his evidenciary affidavit Ex. WW1/A. Workman has during the examination inchief has relied upon and exhibited documents i.e. Ex. WW1/1 to Ex. WW1/3. Workman has been cross examined by the AR of the management.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 5
8. The management has examined Sh. Wilson John, Legal Advisor of management No:1 M/s New Delhi YMCA, as MW1 who filed his evidence by way of affidavit Ex.MW1/A. Board Resolution dt. 26082011 is Ex.MW1/1 ( Original of the same in case ID No:3961/16). Copy of Muster Roll is Ex.Mw1/2 (Colly page 1 to
32)(OSR). Copy of PF eligibility register w.e.f. 01042004 up to May, 2013 is Ex.MW1/3 ( Colly Page 1 to 8)(OSR). Online ESI returns for the year October, 2012 to March, 2013 is Ex. MW1/4 ( Colly Pages 1 to 5). MW1 has been cross examined by the AR of the workman as well as AR of the management no:2.
9. The management has also examined Sh. Jhon Parkash, HR (Head) of management No:1 M/s New Delhi YMCA, as MW2 who filed his evidence by way of affidavit Ex.MW2/A. MW2 has also been cross examined by the AR of the workman as well as AR of the management no:2. The AR of the management has closed the evidence of the management no:1 and AR of the management no.2 also closed the evidence of the management no:2 on 29012020.
10. I have heard the argument of Authorized representatives of the workman and management and perused the record. My findings on the issues are as under:
11. ISSUE No.1: Whether there exists employeremployee relationship between the claimant / workman and the MANAGEMENT No.1 (NEW DELHI YMCA)? OPW And ISSUE No.2 : Whether the claimant / workman is an employee of the Management No.2 (M/s Professional)? OPM The case of the workmanherein that though he was working as a permanent employee with the M1 (NDYMCA) for the last so many years, his employment was shown with the sham contractor M2 (M/s Professional) in order to avoid giving legitimate legal facilities to the workmanherein. The work of the workmanherein was of perennial and continuous in nature and there was a direct supervision and LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 6 control of the M1 (NDYMCA) over the said workman. Many contractors have been changed but the workmanherein continues to work with M1(NDYMCA).
It is a settled principle of law that a person who sets up a plea, burden to prove that plea would be upon him. In the case of N.C. John v. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Ors. (1973)ILLJ366Ker, the Kerala High Court held:
"The burden of proof being on the workmen to establish the employeremployee relationship. An adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer employee relationship."
Again, in the case of Swapan das Gupta and Ors. v. The First Labour Court of West Bengal and Ors. 1975 Lab. I.C. 202 it has been held:
"Where a person asserts that he was a workmen of the company, and it is denied by the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the company but of some other person."
The Hon‟ble Supreme Court in 'Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu‟, AIR 2004 SC 1639 held as under: "47. It is a wellsettled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
It was held in the judgment titled Automobile Association Upper India Vs. P.O. Labour Court II & Anr. 130 (2006) DLT 160, Delhi High Court, in which it was interalia held that:
"engagement and appointment of the workman in service can be established either by direct evidence like existence and production of appointment letter or written agreement, or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave record, deposit of PF contribution, ESI etc. or even by examination of coworkers and this onus can be LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 7 discharged by evidence of the coworker who may depose before the Court that the workman was working with the management."
The respondent relies upon Supreme Court judgement in the case of Bank of Baroda Vs. Ghemarabhai Harjibhai Rabari, 2005(10) SCC 792 in which the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case, it would be the responsibility of the Management to rebut the same. In that case even though the workman had no letter of appointment, he had established that he had worked for 240 days with the Management. He was claiming to have been working as a driver of the bank and could produce vouchers, which showed that he was paid certain sums towards wages and that the amount had been debited to the account of the bank. With such evidence being produced, the Supreme Court held that the onus has shifted to the bank, which was then responsible to show that despite such payment, there was no relationship of employer and employee between the parties.
In the present case, there is absolutely no document from which it can be ascertained that the respondent was paid any amount by the managementherein no appointment letter. There is also no document from which it can be ascertained that the workmanherein was on the rolls of the managementherein. With the abovesaid deficiency in the evidence of the workmanherein, it cannot be said that he could shift the onus to the Management. The documents on which reliance has been placed, as quoted above, does not admit the position of the workman being an employee with the managementherein.
In the present case the workman has not been able show that he was working as a permanent employee with the M1 (NDYMCA) for the last so many years. The workman also failed to show that many contractors have been changed but the LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 8 workmanherein continued to work with M1(NDYMCA). The relevant portion of the cross examination of workman is :
"It is correct that my deployment with the respondent no.1 was through the contractor during the period of my employment. It is correct that during the period vide Ex.WW1/1, I was working with M/s Security Guard Corps (Registered).
I am 10th class passed. I can read and write English language. It is correct that at the time of my termination in June, 2003, I was working with respondent no.2 i.e. M/s Professional. It is correct that I have not place any complaint on record against respondent no.1. prior to WW1/3.
.......I do not remember the date, month and year, when I joined the management no.2. It is correct that I have joined the management no.2 on 19.02.2013. It is correct that the management no.2 paid wages for the month of MayJune2013 before the conciliation officer, KG Marg, New Delhi, to me. ........It is correct that I am not interested to join the duty with the management no.2. It is also correct that I was never interested to join the duty with the management no.2. earlier also and even at present I am not willing to join the services with the management no.2. It is correct that I have not made prayer for reinstatement or any other relief against the management no.2 in my statement of claim. I do not claim any relief against the management no.2..."
The perusal of the Ex.WW1/1 reveals that the wages of the workmanherein were paid through the "contractor or his representative". Moreover, through workman's own admission he is joined the services of the management no.2 on 19.02.2013 which purportedly is also the date of the agreement between the managements M1 and M2. Thus the ISSUE No.2 is also decided in favour of the management no.2.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 9 This also leads to the position that the workmanherein was not the employee of the management no.1 (NDYMCA) as the workman has failed to stablish employeremployee relationship between him and the M1(NDYMCA).
Thus the ISSUE No.1 is decided in favour of the management no.1 and against the workmanherein and the ISSUE No.2 is decided in favour of the management no.2 and against the workmanherein. The Issues No.1 & 2 are decided in favour of the managements No.1 & 2 respectively.
12. ISSUE No.3: Whether the claim of the claimant / workman is maintainable against the MANAGEMENT No.1 (NEW DELHI YMCA)? OPW And ISSUE No.5 : Whether the workman is entitled to the relief claimed in the statement of claim? OPW The Contract Labour Regulation Act, 1970 (CLRA) was legislated to : (1) prohibit the employment of contract labour; and (2) to regulate the working conditions of the contract labour wherever such employment is not prohibited. The judgement of the Supreme Court in BHEL Workers Association, Haridwar v. Union of India, 1985 (50) FLR 205 (SC) traces out the historical background leading to passing of this Act by the Parliament. The question of its abolition had been under the consideration of Government for a long time.
S.10 CLRA : Prohibition of employment of contract labour -
Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be a state Board prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
Before issuing any notification under subsection (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 10 work and benefits provided for the contract labour in that establishment and other relevant factors, such as
(a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the name of industry, trade, business, manufacture or occupation that is carried on in that establishment;
(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) whether it is sufficient to employ considerable number of wholetime workmen.
Explanation.If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final.
In the present case the witness MW2 {Mr. John Prakash - Head HR of New Delhi YMCA (M1 herein)} has admitted in his crossexamination (relevant portion only):
"....I do not remember whether the respondent no:1 is having any license to keep contractor......"
The constitution bench of the Hon'ble Supreme Court in "STEEL AUTHORITY OF INDIA LTD. VS. NATIONAL UNION WATERFRONT WORKERS (reported in AIR 2001 SC 3527 : 2001 ILR 961 ) after prospectively overruling "Air India Statutory Corporation v. Labour Union" (1997 ILR 288) has held : "The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 11 provisions of the Act what the legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the legislature. We have already noticed above the intendment of the of the CLRA Act that it regulates that conditions of service of the contract labour and authorizes in Section 10 (1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in sub section (2) of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provide no ground for absorption of contract labour on issuing notification under subsection (1) of Section 10. Admittedly when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10(1) by the appropriate Government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the CLRA Act is explicitly provided in Sections 23 and 25 of the CLRA Act, it is not for the High Courts or this Court to read some unspecified remedy in Section 10 or substitute for penal consequences specified in Sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lesser or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that the Parliament intended absorption of contract labour on issue of abolition notification under Section 10(1) of CLRA Act."
An analysis of the cases, discussed above, shows that they fall in three classes;
(i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10 (1) of the CLRA Act, no LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 12 automatic absorption of the contract labour working in the establishment was ordered;
(ii) where the contract was found to be sham and nominal rather a camouflage in which case the contract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited;
(iii) where in discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a contractor and the courts have held that the contract labour would indeed be the employees of the principal employer."
(emphasis by me) The Hon'ble Supreme Court in Gujarat Electricity Board v. Hind Mazdoor Sabha, (1995) 5 Supreme Court Cases, 27 held as under : "The contract may be genuine even where all the said factors are present. What is prohibited by Section 10 is the abolition of the contract except by the appropriate Government, after taking into consideration the said factors, and not the recording of the finding on the basis of the said factors, that the contract is a sham or bogus."
In "M/S. Hindustan Lever Ltd vs Union" ( Writ Petition No. 1740 OF 2005 decided on 17 June, 2009) it was held by the Hon'ble Bombay High Court (while referring to Gujarat Electricity Board v. Hind Mazdoor Sabha case:
"45.....That the factors mentioned in section 10(2) of the CLRA Act may be considered while deciding whether a labour contract is genuine or not does not imply that the determination of the question as to whether a contract is sham and bogus or not is limited to or circumscribed by the factors mentioned in the Act.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 13
54. That the work is of a perennial nature is but a factor to be considered with all the other factors while deciding whether a contract is genuine or not or whether there exists an employer employee relationship. By itself it is of little significance or importance. The reason is obvious. There is nothing in law including the CLRA Act that prohibits the principal employer availing the services of contract labour through a contractor even if the work is of a perennial nature. If that be so, I do not see how the fact that a particular work is of a perennial nature, establishes by itself that the contract is sham and bogus."
The CLRA does not provide for a total abolition of contract labour but it provides for abolition of contract labour in appropriate cases (Deem Nath v. National Fertilizer Ltd. (1992 LLR 46 ISCI) There is no automatic absorption of the labourers in the regular employment; T. Chandra Mohan Nair v. Fertilizers &3 Chemicals Travancore Ltd. {1994 LLR 626 (Ker)}.
The primary object of the Act is to stop exploitation of contract labourers by contractor or establishment. The Act does not purport to abolish contract labour in its entirety {R.K. Panda v. Steel Authority of India, (1994) 69 FLR 256 (SC)} In the case between M/s. Bharat Coking Coal Limited Vs Their workmen represented by the Secretary, Bihar Colliery Kamgar Union, (2014 LLR 64) the learned Tribunal had held that in absence of the registration and the license, the arrangement made by the management to execute the work through a contractor is a sham and camouflage. Disagreeing with such findings of the Tribunal the Jharkhand High Court was of the opinion that failure to comply the provisions of Sections 7 (registration of establishment) and 12 (Licensing of contractors) of the CLRA Act does not lead to inescapable conclusion that the workmen concerned are to be regularized under the services of the management for violation of the said provisions. There are other penal consequences which arise for such violation. The provisions pertaining to aforesaid sections of the CLRA Act are no more a resintegra. Hence, in LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 14 this context the Jharkhand High Court relied upon Deena Nath v National Fertilizers Ltd (1992 (64) FLR 39= 1992 (II) LLJ 46 SC), R.K. Panda V Steel Authority of India (1994 (69) FLR 256 (SC) = 1994 (2) LLN 378 (SC)) and Steel Authority of India vs National Union Water Front Workers Union (supra) wherein the Supreme Court has time and again reiterated that noncompliance to section 7 and 12 of the CLRA Act will not lead to absorption or the arrangement between the contractor or principal employer will be treated as sham. Non compliance for such provision will lead to other penal consequences as enshrined in the CLRA Act.
Now let us come to the averments of the workmanherein regarding the contract between M1 (YMCA) and M2 (contractor) being sham due to other aspects on merits. The Blacks' Law Dictionary, (7th Edn) defines 'sham' as (i) Something that is not what it seems; a counterfeit; (ii) A person who pretends to be something that he or she is not; a faker. The Law Lexicon Dictionary (second Edition, 2001) defines 'sham' as good in appearance but false in facts.
For a sham Contract to be proved before the industrial adjudicator the relationship of employer and employee has to be established. In this connection it may be appropriate to refer to the Supreme Court judgment Ram Singh and others V Union Territory, Chandigarh and others 2004 (1) CLR 81 (SC)= 2004 Lab. IC 50 (SC) which has succinctly dealt with two factors namely the 'Control test' and 'integration test' for determining the relationship of employer and employee. The relevant portion of the judgment is set out herein in verbatim for better appreciation and inter alia reads as follows :
"In determining the relationship of employer and employee, no doubt 'control' is one of the important tests but is not to be taken as the sole test. In determining the relationship of employer and employee all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole 'test of control'.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 15 An integrated approach is needed. 'Integration' test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant are who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the 'mutual obligations' between them (see Industrial Law _x0016_Third edition by I.T. Smith and JC Wood _x0016_ at pages 8 to 10).
The issue of control and supervision' was also addressed in General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon vs. Bharat Lal & Anr. ( 2011 I CLR 1 (S.C.)) wherein Supreme court was of the view that in determining relationship between principal employer and contract labour, two determining factors are to be seen who pays the salary to the contractor labour and who has the control and supervision on the work of such employee. It is for the contract labour to prove that he was directly employed by the principal employer and not the contractor. Further, the court was of the opinion that to get relief of reinstatement against principal employer, contract worker has to prove that he was directly paid by principal employer and not contractor. In the context of supervision and control the Court referred to the its judgment in International Airport Authority of India v. International Air Cargo Workers Union (2009 (13) SCC 374= 2009 LLR 923 (SC)). In this instant case the Supreme Court has held that merely because the contract labour work is under the supervision of the officers of the principal employer, it cannot be taken as evidence of direct employment under the principal employer. The relevant observation of the Court in International Airport Authority of India case is set out here under for better appreciation which reads as follows :
"If the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 16 with the contractor, and the ultimate supervision and control lies with the contractor."
Ld. AR for workman has not produced any notification issued by Govt. of India prohibiting the employment of workman as required under CRLA Act. It has already been held herein that the workmanherein was the employee of the M2 (M/s Professionals) and not M1 (New Delhi YMCA). In view of the clear admission of the workmanherein - "It is correct that I have joined the management no.2 on 19.02.2013. It is correct that the management no.2 paid wages for the month of MayJune2013 before the conciliation officer, KG Marg, New Delhi, to me." - It can be inferred that he was a contract labour and not a regular employee of the M1. The workmanherein has not been able to adduce any cogent evidence to establish that the contract between M1 and M2 was sham and camouflaged. The assertion of the workmanherein that he was employed by the M1 (YMCA) since 01.11.2005 remains "not proved". The assertion of the workman that the M1 (YMCA) kept changing the contractor while the workmanherein working at the same employment also remains "not proved". Nothing substantial could be elicited from the cross examinations of the management witness MW1 (Mr. Wilson John - Legal Advisor of YMCA) and MW2 (Mr. John Prakash - Head HR of YMCA) in order to establish that the agreement between M1 and M2 was a sham agreement. The onus of proof of establish the Issue No.3 was on the workman and the workman has failed to discharge the said onus. Thus the claim of the claimant / workman is not maintainable against the MANAGEMENT No.1 (NEW DELHI YMCA) In view of the facts and circumstances of the present case the issues No.3 & 5 are decided in favour of the management and against the workman.
13. ISSUE No.4 : "Whether the respondent no:1 has terminated the contract with respondent no:2 and withheld the security of Rs.4,00,000/ of respondent no:2, for which a civil suit is pending, if so, its effect ? OPM"
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 17 This issue No.4 relates to the transaction between the management no.1 & 2. This issue No.4 is outside the purview of this tribunal for the following two reasons:
1. Firstly that the statement of the workman that he seeks no relief against the management no.2 and the same is clear from the admission in his cross examination: "It is correct that I have not made prayer for reinstatement or any other relief against the management no.2 in my statement of claim. I do not claim any relief against the management no.2..."
2. Secondly, that the matter is a subject matter of a civil suit before a civil court.
Thus the ISSUE No.4 is disposed of accordingly.
14. ISSUE No.6 : RELIEF:
In view of the facts and circumstances of the present case the workmanherein is not entitled to any relief. The claim of the workman is hereby dismissed.
15. However, it is very essential that the issue of management No.1 (New Delhi YMCA) having contract labour without the requisite license u/s7 of the CLRA. 1970 needs to be enquired. The legal consequences of not having the statutory 'registration' and 'licence' shall ensue. A copy of this award be sent forthwith sent to the concerned Licensing and Registration Authority under the CLRA , 1970 for the necessary action.
16. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court. ( VEENA RANI )
Dated:25022020 Presiding Officer Labour Court
Rouse Avenue Courts,New Delhi
Judge Code : DL0271
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 18 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT, ROUSE AVENUE COURTS: NEW DELHI LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc. 25022020 Present : Sh. Umesh Dubey, AR for workman.
Sh.Gulshan Chawla, AR for the management No:1.
Sh. Maneesh Gumber, AR for the management No:2.
Vide my separate detailed order he claim of the workman is dismissed. Requisite number of copies of the order be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:25022020 ( VEENA RANI )
Presiding Officer Labour Court
Rouse Avenue Courts,New Delhi
Judge Code : DL0271
Note: Digital Signature expired on 22022020.
Already applied for renewal/Fresh one.
LIR No.1261/2016 & Old ID No:212/2013, Sh. Pardeep Vs. M/s New Delhi YMCA etc.