Delhi District Court
Claimant/ vs M/S Anupam Printers on 22 October, 2013
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX (EAST)
KARKARDOOMA COURTS : DELHI
LIR/D No. 16/2008
Unique Case I.D. No. 02402C0 062402008
Girish Chand S/o Late Sh. Narottam Lal
C/o Shahdara General Udyog Shramik Union (Regd.)
1/2481,Gali No. 26, Moti Ram Road
Modern Shahdara, Delhi - 110032
........Claimant/Workman
Vs.
M/s Anupam Printers
Through its Proprietor Sh. Devender Nath Sharma
7/114 Nakul Gali, Vishwas Nagar
Shahdara, Delhi - 110032
...........Management
Date of Institution of case : 31.01.2008
Date of reserving the award : 07.10.2013
Date of pronouncement : 22.10.2013
Claim u/s 10 (4A) of Industrial Disputes Act, 1947
A W A R D
This present claim u/s 10 (4A) of Industrial Disputes Act, 1947
(hereinafter referred as 'Act') has been filed by the workman against the
management with the prayer for passing an award in his favour and against
LIR/D No. 16/2008 Page 1 of 11
the management directing the management to reinstate him back in service
with full back wages, continuity of service and other consequential benefits
submitting that he joined the management on 08.07.2002 as Assistant
Machineman at last drawn salary of Rs. 3500/ per month. It was alleged that
he had an unblemished record of service and that the management did not
maintain proper records of service of workman nor issued any appointment
letter to him. It was alleged that he went to his native village for in the month
of May 2007 and when he reported for duty on 01.06.2007, he was not
allowed to resume duty and his services were terminated without any notice
or without paying him his legal dues. He filed a complaint dated 05.06.2007
and on 23.07.2007 with the office of Assistant Labour Commissioner,
Jhilmil Colony, Delhi but since management did not show willingness to
settle the dispute, it remained unresolved. He also sent demand notice dated
23.06.2007 to the management by registered AD but the same was not
replied. He claims to be unemployed since the date of his alleged
termination. Hence the claim.
2. Management contested the claim by filing writtenstatement
alleging therein that the workman was never employed with Shri Devender
Nath Sharma who is the owner of Anupam Paper Products and has no
concern with the management. It was further submitted that no employer
employee relationship existed between the workman and him. It was also
submitted that the management is the proprietorship concern of Shri Kewal
LIR/D No. 16/2008 Page 2 of 11
Kishan Sharma , brother of Shri Devender Nath Sharma . Other allegations
were specifically and categorically denied.
3. No rejoinder to the said written statement was filed by the
workman and on the basis of pleadings of the parties, following issues were
framed on 17.04.2008 as under:
1. Whether Sh. Devender Nath Sharma is the proprietor of
the management? OPW
2. Whether there was relationship of master and servant
between the parties? OPW
3. Whether the services of the workman were terminated
by the management illegally and/or unjustifiably? OPW
4. Whether the workman is entitled to reinstatement of
service with consequential benefits? OPW
5. Relief
4. Thereafter workman examined himself as WW1 in evidence and
closed WE. On the other hand, management examined Sh. Devender Nath
Sharma - alleged proprietor of the management as MW1 and closed ME.
Thereafter an application for summoning labour inspector was moved which
was allowed vide order dated 09.03.2010 and the labour inspector was
examined as WW2. Another application for production of a document i.e. a
visiting card of management, and for recalling and reexamining MW1 was
moved by the workman which was allowed vide order dated 03.05.2013 and
MW1 was recalled and reexamined and ME was closed.
LIR/D No. 16/2008 Page 3 of 11
5. I have heard Sh. J.S. Pareek Ld. AR for workman and Sh. Ankit
Gupta Ld. AR for management and have perused the records of the case.
My issue wise findings are as under:
ISSUE NO. 1
6. The onus to prove this issue was upon the workman . It is the case
of the alleged proprietor of Management namely Shri Devender Nath
Sharma that he is not the proprietor of the management but his brother Shri
Kewal Kishan Sharma is the proprietor. In order to establish this fact, he
placed on record various documents. Ex.MW1/1 was the declaration under
Section 4/5 of the Press & Registration of Books Act, 1867 which mentions
his name as proprietor of M/S Anupam Paper Products. Ex.MW1/2 is the
allotment letter issued by the DSIDC in favour of Anupam Paper Products
and Ex.MW1/3 is the allotment letter in respect of plot in favour of Anupam
Printers. These documents show that both are different entities. Ex.MW1/4 is
the licence issued by the MCD to Shri Kewal Kishan Sharma . Ex.MW1/5 is
the registration certificate in respect of M/S Anupam Paper Products
showing Shri Devender Nath Sharma as its proprietor. Ex. MW1/6 is the
certificate of registration issued by the Delhi Sales Tax Department to M/S
Anupam Paper Products with Shri Devender Nath Sharma as its proprietor.
In the later crossexamination MW1 also produced his visiting card
Ex.MW1/X bearing his name and particulars of Anupam Paper Products.
These documents were not challenged by Ld. AR for workman in the cross
LIR/D No. 16/2008 Page 4 of 11
examination of MW1 and therefore, their authenticity cannot be doubted.
Thus, these documents establish that Shri Devender Nath Sharma is the
proprietor of M/S Anupam Paper Products and not of the present
management, i.e. M/S Anupam Printers.
7. It was also submitted that both the above firms are operating from
different addresses, that is to say that the management is functioning from
7/114B while Anupam Paper Products is functioning from 7/114, Nakul
Gali, Vishwas Nagar, Shahdara Delhi. It shows that functioning from
adjacent properties. The workman could not produce any documentary
evidence regarding his employment with either of the management and
particularly to show that he was an employee of Shri Devender Nath Sharma
but simply alleged that both the brothers were working together and used to
take work from him. In his examinationinchief, he admitted that the
proprietor of Anupam Printers is Shri Kewal Kishan Sharma and Devender
Nath Sharma is his brother but as per his understanding, the firm Anupam
Printers is being run by both the brothers. In his crossexamination he
admitted that his claim is only against Anupam Printers and he could not
admit or deny if Shri Devender Nath Sharma was the proprietor of M/S
Anupam Paper Products and not M/S Anupam Printers. He further admitted
that he had no documentary evidence to show that he was employed by Shri
Devender Nath Sharma .
LIR/D No. 16/2008 Page 5 of 11
8. The workman has simply relied upon the report and proceedings
of the Labour Inspector Shri Dinesh Kumar to whom his complaint was
marked and who has been examined as a witness before the Court. He
produced copy of the notice issued to the management through Devender
Nath Sharma , Ex.C1 which was received by him, statement recorded by him
and signed by Shri Devender Nath Sharma dt. 14.6.2007 wherein he himself
stated that Devender Nath Sharma is the proprietor who met him on his visit
to the management and told him that the workman worked in his firm for 1½
years as helper and thereafter left the job on his own . He further produced
the challans issued to Shri Devender Nath Sharma under the Minimum
Wages Act as Ex.C3 and notice of appearance for production of documents
Ex.C4 which was again received by Shri Devender Nath Sharma . He also
produced the proceedings recorded at his office wherein both the parties
appeared on various dates. In those proceedings, Shri Devender Nath Sharma
attended the proceedings on 20.6.2007 and 03.7.2007 while on 10.7.2007
Shri Kewal Kishan Sharma appeared who has been addressed as brother of
the proprietor.
9. Though Shri Devender Nath Sharma has till date never filed any
application opposing the fact that he has been shown the proprietor of the
management in the claim as well as other proceedings but as per the settled
law, it is the workman who has to establish the relationship. In the cross
examination , Labour Inspector deposed that he inquired from Shri Devender
LIR/D No. 16/2008 Page 6 of 11
Nath Sharma whether he is the proprietor of the management and he
affirmed and signed on the notice served upon the management as well as on
his statement and the proceedings. It is worthwhile to note that on all the
documents produced by the Labour Inspector from Ex.C1 to C6, Shri
Devender Nath Sharma has no where in his own handwriting written himself
as proprietor of the Management. It was admitted by the Labour Inspector
that on Ex.C4 only the signatures have been appended by Shri Devender
Nath Sharma but the full name with proprietor under it at point A has been
written by him and then again added that he did not knew who wrote it.
Hence, the mere fact that Shri Devender Nath Sharma accepted the notice
issued by the Labour Inspector or attended the proceedings on behalf of his
brother is not sufficient to prove that he is the proprietor of the management,
in view of the unchallenged documents relied upon by him and referred to
above as Ex.MW1/1 to MW1/6. Further more, as observed above, the
workman in his own examination had admitted that proprietor of Anupam
Printers (management) is Shri Kewal Kishan Sharma and Shri Devender
Nath Sharma is his brother. He cannot escape from his own admission .
10. After MW1 was recalled, he was confronted with a visiting card
Mark MX having names of both Shri Devender Nath Sharma and Kewal
Kishan Sharma printed upon it showing them as proprietors of M/S Anupam
Printers. MW1 deposed that the said visiting card was of the management
but added that this card did not belonged to his company and appeared to
LIR/D No. 16/2008 Page 7 of 11
have been got printed by the workman . He also produced his own visiting
card Ex.MW1/X which had only his name printed as proprietor of M/S
Anupam Paper Products. He, however, admitted that the mobile number and
landline number printed on the card produced by the workman belonged to
him. The source of the said visiting card could not be proved by the
workman . It is not difficult to obtain the telephone numbers of the person
with whom the workman had been litigating so long and when he had
worked in the company owned by his brother. The authenticity of this card
could not be proved by the workman and hence, it is of no help to him.
11. It is, thus, clear that Shri Devender Nath Sharma is not the
proprietor of the management which is a separate entity from Anupam Paper
Products and therefore, Issue NO. 1 is decided in favour of the management
and against the workman .
ISSUE NO. 2 :
12. It is to be noted that the WS in the present case has been filed by
Shri Devender Nath Sharma on behalf of M/S Anupam Paper Products, who
has denied relationship with the workman . In his affidavit, Shri Devender
Nath Sharma deposed that the proprietor of the management is his brother
Shri Kewal Kishan Sharma , who despite having knowledge about the
present claim never appeared nor tendered his explanation or reply to the
claim. In Ex.C2, it has been recorded by the Labour Inspector that the
LIR/D No. 16/2008 Page 8 of 11
workman had been working with the management for the last 1½ years on
which Shri Devender Nath Sharma had put his signatures which he also
admitted in his crossexamination . This shows that at least Shri Devender
Nath Sharma was having knowledge that the workman had worked with M/S
Anupam Printers though he may not be the proprietor thereof, being the
brother of the proprietor of the management and also working in the adjacent
premises.
13. In a judgment relied upon by the Ld. AR for workman passed in
WP(C) No. 11384/2009 dt. 02.9.2009, it was held that there was no reason
without the report of respondent No. 2 on this aspect of the matter because
the report has come from a person holding an official position .
14. In Automobile Association of Upper India Vs. PO Labour Court II & Anr. 2006 LLR 851 Delhi, it was held that "Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave records, deposit of Provident Fund contribution and Employees' State Insurance contributions etc. LIR/D No. 16/2008 Page 9 of 11
15. Thus, from the circumstances enumerated herein above, relationship of employer and employee between the workman and the management of M/S Anupam Printers stand established, though no record has been produced by the workman . Hence, this issue is decided in favour of the workman and against the management.
ISSUE NO. 3 :
16. It has been claimed by the workman that when after availing leave from 01.5.2007 to 31.5.2007, he reported for duty on 01.6.2007, he was not allowed to duty and as such his services were terminated. This fact remained unrebutted throughout the trial as there had been no denial of this fact even in the WS filed by Shri Devender Nath Sharma while the proprietor of M/S Anupam Printers never appeared. It is also to be noted that the claim has been filed against the management of M/S Anupam Printers irrespective of the fact as to who is its proprietor. There is nothing on record to suggest that any notice of termination was served upon the workman or any memo or charge sheet was issued to him for his absenteeism or any inquiry was held against him. It is also not the case of the management that any service compensation was given to him and as such his termination was in violation of provisions of Section 25F of the ID Act and thus, illegal. Hence, this issue is also decided in favour of the workman and against the management. LIR/D No. 16/2008 Page 10 of 11 ISSUE NO. 4 and 5/Relief :
17. The workman has claimed that he remained unemployed after the termination of his service by the management. However, in his cross examination he deposed that he joined services once or twice but after his employers came to know about the present case, they terminated his services. He also deposed that he worked for hardly 1520 days after termination of his service. It is a settled law that if the workman get employed elsewhere after the termination of his service by the management, he is not entitled to reinstatement. Even otherwise, a period of five years has elapsed since his termination and it would not be proper to direct reinstatement. Hence, it is directed that a lumpsum compensation of Rs.60,000/ be paid to the workman by the management of M/S Anupam Printers within 30 days of the publication of this Award failing which it shall carry an interest @ 9% per annum till the date of actual payment.
Claim is answered accordingly. Copy of award be sent for publication. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 22nd day of October 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR/D No. 16/2008 Page 11 of 11