Delhi District Court
Shri Laxman Prasad Goswami vs M/S Hudco on 2 April, 2013
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR No. 927/2006
Unique Case ID No. 02402C0171012003
Shri Laxman Prasad Goswami
S/o Shri Swami Gokul Nath
R/o Radha Raman Ghera
Vrindavan - 281121 (UP) ....................WORKMAN
Versus
1. M/S HUDCO
Through its Chairman
HUDCO Bhawan
Indian Habitat Centre,
Lodhi Road, New Delhi
2. KM Aggarwal and Co.
Chartered Accountant
36, Netaji Subhash Marg,
Darya Ganj, New Delhi - 110 002 ...............MANAGEMENT
Date of institution of the case : 03.1.2004
Date for which Award reserved : 25.3.2013
Date of passing the Award : 02.4.2013
LIR No. 927/2006 1 of 20
Ref No. F.24 (1116)/2003/Lab/1457183 dated 17.9.2003
A W A R D
Having satisfied regarding existence of an industrial
dispute between the parties, the Dy. Labour Commissioner,
Government of NCT of Delhi in exercise of powers conferred by
section 10(1)(c) and 12 (5) of the Industrial Disputes Act, 1947
(hereinafter referred as 'Act') with Labour Department Notification
No. S11011/2/75/DK (IA) dated 14th April 1975, referred the present
dispute to this Labour Court for adjudication with the following
terms of reference:
"Whether the services of Shri Laxman
Prasad Goswami S/o Shri Swami Gokul
Nath have been terminated illegally and/or
unjustifiably by the management, if so,
what relief he is entitled to and what
directions are necessary in this respect ?"
2. Notice of reference was sent to the workman who
appeared and filed his statement of claim wherein he alleged that he
has been working with management No. 1 since 16.8.1994 as an
Accountant/Staff Group/Data Entry Computer Operator on a
LIR No. 927/2006 2 of 20
monthly salary of Rs.3000/ with the condition that if his work was
found satisfactory he will be continued in service. He alleged that
within the month he was confirmed as temporary employee upon
the post of Assistant Accountant but he was compelled to take
salary in cash only which he accepted under protest and on
16.1.1996 Management No. 1 issued him a certificate and an identity
card declaring him as its employee. He further alleged that he came
to know that Mr. Sandeep Gupta and Ms. Rajni Seth were appointed
in September/October 1998 directly without any advertisement and
notice. He further alleged that he came to know that the
management withdrawn his salary but paid him nominal amount
every month and never paid his full salary and he was kept as a
contract employee of Management No. 1 through Management No.
2. He further alleged that he is possessing the qualification of M.
Com and is working with Management No. 1 since 1994 but he was
never considered as a permanent employee while more than 10
persons have been appointed as a Data Entry Computer Operator in
the office and he was not paid equal and proper salary as being paid
to other employees. He submitted that he filed a civil Writ Petition
LIR No. 927/2006 3 of 20
No. 5520 of 1999 before the Hon'ble High Court for his
regularization with Management No. 1 which was dismissed and
thereafter he filed an SLP before the Hon'ble Supreme Court which
was also dismissed vide order dt. 11.2.2002. He alleged that he has
been prohibited to enter in the premises of Management after
17.10.2001 while no letter for removal or retrenchment from his
service was given to him. He further alleged that his overtime and
conveyance amount Rs.2102/ for the period between 01.4.2000 to
16.9.2000 has been denied and his salary after September 2001 was
also not paid by Management No. 1. Hence, through this claim the
workman has prayed for his regularization/reinstatement in service
with full back wages and consequential benefits while submitting
that he is an employee of Management No. 1.
3. The managements appeared and opposed the claim by
filing WS wherein all the allegations were refuted specifically and
categorically. It was submitted by Management No. 1 that the
claimant was not its employee and he himself admitted that he was
an employee of Management No. 2 which were contractors and that
LIR No. 927/2006 4 of 20
he was a contractor employee. It was further submitted that
Management No. 1 is a Government Company while Management
No. 2 is a partnership firm of Chartered Accountants.
It was submitted on behalf of Management No. 2 that
since no relief has been sought against Management No. 2, the claim
is not legally maintainable and that it is not an industry within its
definition U/S 2(j) of the ID Act.
4. The workman filed the rejoinder wherein he denied the
counter allegations and reinstated his plea taken in the claim. From
the pleadings of the parties, the following issues were framed on
28.9.2005 as under :
1. Whether the claim has been filed without
proper espousal. Its effect?
2. Whether the claimant was workman of
Management No. 1?
3. Whether the Management No. 2 is an
Industry?
4. Relief in terms of reference.
5. The workman examined himself as WW1 and tendered
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his evidence by way of affidavit and closed the same. Shri Sandeep
Kumar - Personnel Officer of Management No. 1 was examined as
MW1 and Shri AK Gupta - an employee in Finance Division of
Management No. 2 was examined as MW2, in the Management
Evidence. No witness was examined on behalf of Management No.2
despite ample opportunities.
6. I have heard Shri Maya Ram Ld. AR for the workman
and Shri BS Rana Ld. AR for the Management No. 1. None
appeared on behalf of Management No. 2 to address arguments. My
issuewise findings are as under :
ISSUE No. 1 :
7. The present reference has been received with terms of
reference as "Whether the services of the workman have been
illegally and/or unjustifiably terminated?" This is, thus, a case of
illegal termination and not of general demand and therefore,
espousal is not necessary and in the absence of any espousal the
claim is very well maintainable. Hence, this issue is decided in
LIR No. 927/2006 6 of 20
favour of the workman and against the management.
ISSUE No. 3 :
8. The onus to prove this issue was upon the Management
No. 2. However, no witness was examined on behalf of the said
management to prove this issue. In any case, the stand taken by
Management No. 2 in the WS had been that it is a partnership firm
of Chartered Accountants, not having more than 23 employees. In
any case, the workman has not sought any relief as against
management No. 2 and in his crossexamination has even denied to
be having any knowledge about Management No. 2 and therefore,
this issue has become redundant.
ISSUE No. 2 :
9. It is a settled law that the workman has to prove the
relationship of employer and employee in order to succeed with the
claim and the onus to prove the relationship of employer and
employee rests upon the workman. It has been so held by the
Hon'ble Apex Court in the judgments delivered in Workmen of
LIR No. 927/2006 7 of 20
Nilgiri Cooperative Society Ltd. Vs. State of Tamil Nadu 2004
LLR 351 (SC) as well as by the Hon'ble High Court of Delhi in
Automobile Association of Upper India Vs. PO Labour Court II &
Anr. 2006 LLR 851 Delhi.
10. In the instant case, the workman has impleaded two
managements, meaning thereby that he alleges that he had two
employers. No person can be employed by two employers at a given
time. In his statement of claim as well as in the affidavit in evidence,
the workman alleged that he was appointed by Management No. 1
through Management No. 2 on the basis of letter dt. 16.8.1994.
Similar plea was raised by him in the Writ Petition before the
Hon'ble High Court as well as in the SLP before the Hon'ble
Supreme Court. However, in the crossexamination by Management
No. 2, he totally denied any relationship with Management No. 2
and deposed that he had never worked with Management No. 2 and
that the contents regarding Management No. 2 in his claim,
rejoinder and affidavit were not in his personal knowledge but were
drafted by his Counsel. It cannot be expected from the workman
LIR No. 927/2006 8 of 20
who is a highly educated person that incorrect facts were
incorporated in his pleadings without his knowledge. In any case, a
person alleging wrong facts either in his pleadings or in his evidence
cannot succeed.
11. It is to be seen as to what evidence has been adduced by
the workman to establish his relationship with the workman. He has
alleged that he was appointed on the basis of letter dt. 16.8.1994
issued by Management No. 1, copy of which has been placed on
record by him with other documents as Ex.WW1/3. A perusal of the
said letter shows that the same has been written by Shri CP Mishra -
partner of Management No. 2 and addressed to Shri RP Singhal
Chief Finance of Management No. 1 wherein Management No. 2
had recommended and deputed the workman along with his biodata
for appointment with Management No. 1. It is pertinent to mention
that this letter was written by Management No. 2 in response to a
letter of Management No. 1 addressed to Management No. 2 dt.
07.2.1994 which is also on record and part of Ex.WW1/3 wherein
earlier communications between the two managements have been
LIR No. 927/2006 9 of 20
referred to and the offer of Management No. 2 for providing staff
support to Management No. 1 was considered and three assistants
were called for a period of six months on certain terms and
conditions mentioned therein. It was in response to this letter of
management No. 1 that management No. 2 responded and deputed
the workman vide letter dt. 16.8.1994. The workman has raised a
false plea that he submitted his biodata independently to
management No. 1 along with the letter dt. 16.8.1994. A perusal of
letter dt. 16.8.1994 belies his claim as the name of the workman has
been recommended by Management No. 2 along with his biodata
as per letter dt. 16.8.1994. It thus, becomes clear that the workman
was not appointed directly by Management No. 1 but his
appointment was for a temporary period of six months and that too,
through Management No. 2.
12. During the course of arguments, it was submitted by Ld.
AR for workman that it was a tactic adopted by Management No. 1
and the appointment of workman with it was through back door. If
this argument is to be accepted, it means that the initial appointment
LIR No. 927/2006 10 of 20
of the workman was illegal or through illegal means and in that
eventuality he cannot raise any claim even regarding illegal
termination what to say of regularization of service which is beyond
the scope of this Court. In any case, this plea is unacceptable in
view of the above findings regarding the manner in which the
workman was initially appointed.
13. It was argued on behalf of the workman that he was
being paid salary and other payments by management No. 1.
However, not a single salary receipt has been placed on record
except certain vouchers Ex.WW1/M1 to M6 which are regarding
payment of conveyance allowance to the workman during his
working with Management No. 1 which was to be paid to him as per
the terms and conditions laid down in the letter of the Management
No. 1 dt. 07.2.1994 referred to above vide which offer was made to
Management No. 2 to depute Assistants. These vouchers even if
admitted by MW1 would in no manner prove payment of salary to
the workman and would not prove the relationship.
14. It was further submitted on behalf of the workman that
LIR No. 927/2006 11 of 20
Management No. 1 issued a certificate Ex.WW1/6 as also a gate
pass dt. 16.1.1996 which establishes his relationship. He was further
issued an identity card Ex.WW1/7 vide which Management No. 1
accepted the workman as its employee. Even these documents are of
no help to the workman as a perusal of the same shows that they
were issued to the workman for permitting his entry into the
premises of the management No. 1 and nothing beyond that. The
identity card was also issued temporarily for a period of six months
as mentioned thereupon.
15. Similarly, receipt relied upon by the workman Ex.
WW1/9 and letter Mark WWA are also in respect of reimbursement
claims of the workman to which he was eligible as per the terms and
conditions of offer on which he was appointed through management
no. 2. Document Mark WWE, a photocopy of the payment scroll of
management no. 1 is also in relation to such payments. None of
these documents prove the relationship of employer and employee
between management no. 1 and the workman.
16. It is to be observed that since the workman started his
LIR No. 927/2006 12 of 20
litigation by filing writ petition till the filing of present statement of
claim, he had been taking a stand that he had been working with
management no. 1 through respondent no. 2 as a contract labour that
is to say, that he was never employed directly by management no. 1. It is further to be observed that management no. 1 is a government owned company and no appointment can be made by it without going through a series of processes including publication of vacancies, calling for interviews etc., issuance of appointment letters and maintaining of service records. It is the case of the workman himself that he was never issued any appointment letter nor paid any salary through cheque or through salary registers nor facilities of ESI and PF were extended to him. On the contrary, his case has been that the salary used to be issued/withdrawn by management no. 2 who used to make payment to him. In fact, he had placed on record documents Mark F which were annexed with the writ petition out of which one document shows that he received Rs. 3600/ as salary for the month of February 2000 from management no. 2 under his signatures though, he denied his signatures on that receipt. The management no. 1 has also placed on record copy of its LIR No. 927/2006 13 of 20 recruitment and promotion rules which lay in detail the process of appointment of employees under various categories. It was rightly pointed out by the Ld. AR for the management that as per Rule 14.1 no direct recruitment from outside can be made without inviting applications through advertisement giving full information. Similarly, he pointed out Rule 4.2.8 which require minimum qualification for a Data Entry Operator (as of workman) to be Graduate with a certificate in data entry operations from a reputed institution. The workman in his cross examination admitted that in the year 1994 no post was advertised by management no. 1 nor he received any call from employment exchange nor received any call for interview nor was medically examined in the year 1994 or thereafter. He also deposed that during his working tenure, he never asked for any appointment letter from management no. 1 and that he was never confirmed as temporary employee and admitted that the contents of para 4 of his affidavit to that extent are incorrect. He further deposed that he obtained diploma in computer in the year 1998/1999 which means that he was not even qualified for the post he claims, in the year 1994.
LIR No. 927/2006 14 of 20
17. On the contrary, it was deposed by MW2 that in the year 1994, the management no. 1 had undertaken some construction work of temporary nature for which management no. 2 was hired for maintenance of accounts who deputed the workman for the said work. He further categorically deposed that the work of the workman was supervised by management no. 2 meaning thereby that there was no supervision or control of management no. 1 upon the workman.
18. It was contended by the Ld. ARW that the workman continued to work for almost five years and that amounts to unfair labour practice as he was never regularized in service and relied upon the judgments in 'Steel Authority of India Ltd. & Ors. vs National Union Water Front Workers & Ors. 2001 (5) SCALE 626' and Hussainbhai, Calicut vs Alath Factory Thozhilali Union, Kozhikode & Ors. (1978) 3 SCR 1073. He also emphasized that the modus adopted by management no. 1 was against Contract Labour (Regulation and Abolition) Act 1970.
LIR No. 927/2006 15 of 20
19. The various letters on record issued by management no. 1 to management no. 2 show that the appointment of the workman was extended from time to time and the salary paid to him through management no. 2 was also increased from time to time as also admitted by the workman in his claim. If the management no. 2 did not pay the entire salary to the workman, management no. 1 cannot be faulted at because they had released the entire agreed salary to management no. 2. It is also to be noticed the during the entire tenure of five years, that is from 1994 to 1999, the workman never raised any protest against his extension of contract or payment of lesser salary, in writing either to management no. 1 or management no. 2. The work for which the workman was retained by management no. 1 was for a limited period as they had undertaken a construction work and after the work was complete, the division was closed.
20. Even in Steel Authority of India's case (supra) it was held by the Hon'ble Apex Court that it cannot be said that by virtue of engagement of contract labour by the contractor in any work of or LIR No. 927/2006 16 of 20 in connection with the work of an establishment, the relationship of master and servant is created between the principal employer and the contract labour. Similarly in Hussainbhai's case (supra), the Hon'ble Apex Court emphasized on economic control over worker's subsistence, skill and continued employment. It was the case where the workers continued to work with the principal employer with intermediate contractors who used to change. The present case is not covered by that. The contract between management no. 1 & 2 was for a limited period with no intermediate contractors.
21. Ld. ARW also relied upon the judgment in Thermal Power Station, Ukai Gujarat vs Hind Mazdoor Sabha & Ors. wherein it was held that the workers of a so called contractor can raise an industrial dispute calling that the contract is a sham and they are in fact workmen of the principal employer. Almost similar view was expressed in Steel Authority's case (supra) for referring the dispute to the Industrial Adjudicator.
22. The present is a reference received from the Office of LIR No. 927/2006 17 of 20 the Labour Commissioner and it is a settled law that the labour courts cannot travel beyond the scope of reference. There is no term in the reference for declaring the contract or for adjudicating whether the contract between the management no. 1 & 2 was a sham or a camouflage. Nothing precluded the workman to raise this plea before the Labour commissioner for the purposes of including this plea in the reference. In Dena Nath & Ors. Vs National Fertilizers Ltd. & Ors. (1992) I SCC 695, the Hon'ble Court observed that the reference to labour court could be as to whether it is necessary for the management to employ contract labour directly or indirectly; a question can as well be referred whether the engagement of contract labour was bonafide or it was a camouflage. No such reference was made to this court and this court cannot travel beyond reference. Even otherwise it is to be seen that the workman has failed to give example of any other similarly placed employee to have been engaged by management no. 1 so as to bypass the labour laws. Hence, in my opinion, firstly the contract between management no. 1 & 2 to engage the services of the workman does not appear to be a sham or camouflage and secondly, this court cannot return an LIR No. 927/2006 18 of 20 appropriate finding on this plea in the absence of any reference about it.
23. It was further pleaded on behalf of the workman that two other workers namely Sandeep Gupta and Ms. Rajni Sethi were similarly appointed but later on were regularized in service. In this respect MW2 deposed in his examination in chief that both of them had applied for the post of Data Entry Operator Grade II and went through the process of selection and were selected by the selection board and on that basis they were appointed while the workman never applied for any post including that of data entry operator. The workman in his cross examination in this regard deposed that he did not remember whether he applied for regular post with management no. 1 thereby circumventing the answer. There was no cross examination of MW2 in respect of the appointment of Sandeep Gupta and Rajni Sethi meaning thereby that the workman accepted this fact.
24. It is clear from the above discussion that the workman has utterly failed to prove that he was a direct employee of LIR No. 927/2006 19 of 20 management no. 1 and himself had denied relationship with management no. 2. He has thus, failed to prove his relationship of employer and employee with management no. 1. Accordingly, this issue is decided in favour of management no. 1 and against the workman.
ISSUE No. 4/Relief :
25. In view of the findings on Issue No. 3 above, when the workman has failed to prove the relationship, there is no question of his termination by Management No. 1, either illegally or unjustifiably and as such he is not entitled to any relief as against Management No. 1. Since the workman has not sought any relief against management no. 2, he is also not entitled to any relief as against management no. 2.
Reference is answered accordingly. Copy of this award be sent for publication . File be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 02nd day of April 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR No. 927/2006 20 of 20