Delhi District Court
Between The vs The on 1 May, 2013
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO.149/12
Unique Case ID No. 02402C0150552012
BETWEEN THE WORKMAN
Sh. Muturoo Yadav s/o Sh. Shiv Nath Yadav as represented by Janhitkari General
Karamchari Union, B16, Rajendra Jaina Tower, Near Petrol Pump, Wazirpur
Industrial Area, Delhi52.
AND THE MANAGEMENTS OF
(i) M/s Sohum Trading Co., B10/67, Group Industrial Area, Wazirpur, Delhi52
and (ii) M/s Om Sai Ram Steels, C56/2, Wazirpur Industrial Area, Delhi52.
Date of Institution : 23.05.2012
Date on which award reserved : 30.04.2013
Date on which award passed : 1.05.2013
A W A R D
1 By this award, I shall dispose off the reference as sent by the Ld. Deputy
Labour Commissioner, Distt. NorthWest, Govt. of the National Capital Territory
of Delhi arising between the parties named above to this Labour Court vide
Notification No. F.24/ID/(692)/11/NWD/(131)/11/Lab./580610 dated 21.04.12
with the following terms of reference:
"Whether the services of Sh. Muturoo Yadav s/o Sh. Shiv Nath Yadav have
been terminated illegally and /or unjustifiably by the management; and if so, to
what relief is he entitled and what directions are necessary in this respect?"
2 After the receipt of the reference, notice was issued to the workman with
directions to file the statement of claim which has been filed by workman and he
has interalia stated that he had been working with the managements since last ten
years at the post of 'Helper' and his last drawn salary was Rs.2800/ and he had been
ID NO. 149/12 1/8
doing his work with hard labour and honestly without affording any chance of any
complaint to the management in any manner during his service tenure nor he has
ever been chargesheeted by the management but the managements had not been
providing him various legal facilities i.e. appointment letter, minimum wages as
prescribed by Delhi government, attendance card, identity card, yearly and casual
leave, ESI card, fund and bonus etc. It is further stated that the managements
without any prior intimation or notice to the workman used to depute him at the
address of management no. 2 and he was doing his work sometimes with
management no. 1 or sometimes with management no. 2 without issuing of any
transfer letter and when the workman demanded the transfer letter, neither the
transfer letter nor any appointment letter was given and when the workman
demanded the legal facilities including transfer letter and appointment letter, the
management did not provide the same, rather it obtained the thumb impression of
the workman on stamped papers and vouchers and thereafter, it terminated the
services of the workman on 22.10.10 without any reason and prior intimation. It is
further stated that the management prior to terminating the services of the workman
neither issued any notice nor paid notice pay nor paid earned wages and service
compensation nor the workman was charge sheeted nor any domestic enquiry was
conducted against him, which is in violation of section 25F of the I.D. Act. It is
further stated that thereafter the workman filed a complaint against the management
before Asstt. Labour Commissioner, Labour Office, Nimri Colony, Ashok Vihar,
Delhi but despite the best efforts of the Labour Inspector, neither the management
reinstated the workman nor paid his earned wages. The workman even sent a
demand notice dt. 15.10.11 to the management through regd. AD but of no
consequence and then he filed his statement of claim before the Asstt. Labour
Commissioner, Labour Office, Nimri Colony, Delhi wherealso the management did
ID NO. 149/12 2/8
not take any interest and due to such adamant attitude of the management,
conciliation failed and ultimately the matter was referred to this court by way of
aforementioned reference for adjudication by the Ld. Dy. Labour Commissioner,
Distt. NorthWest and the workman in terms of the directions of the court has filed
the present statement of claim with a prayer that the management be directed to
reinstate him at the same post with full back wages including benefits of continuity
of service and all other consequential benefits.
3 Both the managements were served and they have filed their separate written
statement thereby denying the employer employee relationship with the workman at
any point of time and it is stated that the claimant has wrongly arrayed them as
managements in the present dispute. On merits, employer employee relationship is
again denied and the facts of preliminary objections are reiterated and interalia the
whole written statement of both the managements is revolving around the facts that
there is no employer employee relationship in between the parties and such the
question of termination of his services or withholding of his earned wages or
obtaining his thumb impression on any paper/voucher by the managements does not
arise and it is prayed that the claim of the workman be dismissed.
4 The workman thereafter filed rejoinder in which he specifically denied that
there is no employer employee relationship in between the parties. All other facts of
the written statement are denied word by word and he reiterated and reaffirmed the
facts of the statement of claim and it is prayed that an award may kindly be passed
in favour of the workman in terms of the prayer made by him in the statement of
claim.
5 After completion of pleadings, the following issues were framed on 6.10.12:
1 Whether there is any employer employee relationship in between the
ID NO. 149/12 3/8
workman and either of the managements?OPW.
2 In terms of reference?OPW.
3 Relief.
6 After the framing up of the issues, both the parties were given opportunity to
lead their evidence to prove their respective contentions/pleas and accordingly, the
matter was fixed for workman's evidence and the workman has examined himself as
WW1. The workman has also examined Sh. Mantu Chauhan i.e. coworker as
WW2 and then closed his evidence. Thereafter, opportunity was given to the
managements and the management no.1 has examined Sh. Harish i.e. accountant of
the management no.1 as MW1 and the management no. 2 has examined
Sh. Narender Khemka i.e. proprietor of the management no. 2 and then both
managements also closed their evidence. Thereafter, matter was fixed for final
arguments.
7 I have heard the arguments and perused the record. My issuewise findings
are as follows:
ISSUE NO. 1:
8 The onus to prove this issue was upon the workman and he had to prove that
there is any employer employee relationship in between him and either of the
managements.
9 In nutshell the case of the workman is that he was working with the
management no. 1 but the management no. 1 used to depute him with management
no.2 time and again, that too, without issuing any formal transfer letter and when
he demanded the same along with appointment letter and other legal facilities, his
services were terminated. Both the managements have denied the employer
employee relationship with the present workman.
ID NO. 149/12 4/8
10 WW1/workman was cross examined and he deposed that he does not have
any documentary evidence to prove that he had been working with the management
no. 1 or with the management no. 2. He even deposed to the extent that he is not
aware about the contents of his affidavit of evidence. However, to prove employer
employee relationship, the workman has examined one more witness i.e. Mantu
Chauhan as WW2 who admittedly was the previous employee of the management
and he in his affidavit has deposed that he had been working with the management
no. 1 and the workman was working with the management no. 1 even prior to his
joining and he was also sometimes deputed with the management no. 2 alongwith
the workman and both the managements have functional integrality. In cross
examination he deposed that he is not a summoned witness and also admitted that
the management was providing ESI facilities to all its workers. He also admitted
that whenever he was getting the salary, his signatures on the salary register were
obtained but he denied the suggestion that he has come to depose on the saying of
the workman.
11 Both the managements in their evidence have deposed in terms of written
statement and in cross examination of MW1, he admitted that Mantu Chauhan was
issued ESI card by the management no. 1. He further deposed that the ESI code is
the same as it is mentioned on the ESI card of Mantu Chauhan. In cross
examination of MW2, he denied the suggestion that the management no. 2 used to
deploy the workman as per its convenience i.e. sometimes with management no.1
or sometimes with management no. 2.
12 Despite lengthy cross examination of the MW1 and MW2, the workman has
not been able to prove any documentary evidence on the court record by which it
can be said that the workman had been working with the management no. 1 or with
the management no. 2. The management no. 2 in written statement has stated that it
ID NO. 149/12 5/8
has no concern with the management no. 1 and Sh. Manoj Singhal is the proprietor
of the management no.1. However the certified copy of the settlement arrived at
I.D. no.151/12 titled Sh. Abhishek Srivastava Vs. M/s Sohum Trading Co. was
produced before this court where Sh. Narender Kumar has signed as a proprietor of
the management no. 1 and this was got confronted from the witness to establish that
management no. 1 and management no. 2 have functional integrality. The court is
of the opinion that although to some extent that Ld.ARW has been able to impeach
the testimony of MW2 to prove that management no. 2 has functional integrality
with management no. 1 yet this was not the fact which was required to be proved.
The fact which was to be proved by the workman is that he has been an employee
either of these two managements which fact has not come on the court record.
13 As far as testimony of WW2 is concerned, he has admitted that he was being
issued ESI card and in his examinationinchief he deposed that workman Muturoo
Yadav was working with the management prior to him. If the workman would have
been working with the management prior to joining of WW2 Sh. Mantu Chauhan
and if the management had been issuing ESI card to its employees, then what was
the reason that the workman was not having ESI card is a fact which has to be taken
note of. The workman has not filed any complaint during the alleged tenure of 10
years of service that his other coworkers were being given ESI card and he is being
deprived of. WW2 even had admitted that he was being given salary on the salary
register and despite that workman has not summoned the salary and attendance
register of the management so as to prove that his name is on the muster roll or
salary register of the management.
14 Further, in the entire statement of claim the workman has not mentioned as
to who is the person/employee the workman is likely to examine as its witness. All
of a sudden WW2 was brought in by the workman. Therefore, this witness is not a
ID NO. 149/12 6/8
summoned witness and has no documentary evidence to prove that Sh. Muturoo
Yadav had ever been working with the managements. It is only an oral evidence.
On the other hand the management has filed the details of return of ESI contribution
i.e. Ex.MW1/1 (colly. 14 pages) and there is no name of the workman in the list
submitted by the management to the ESIC office of the employees for whom the
contribution of ESI was being deposited by the management. The court is also of
the opinion that even if the workman intended to examine some coworker, he
would have examined the coworker of the I.D. No.151/12 with whom the
management no. 1 compromised before this court in terms of Ex.MW1/XW1 dt.
17.08.12. That witness has not been examined. There is another name appearing in the demand notice of the workman i.e. Sh. Rajnish Kumar whose name is figuring in Ex.WW1/1 i.e. notice given by the workman to the bonus officer dt. 17.10.11 and in which it was stated that Muturoo Yadav and Rajnish Kumar were working with the management. Even this Rajnish Kumar has not been examined by the workman. Therefore, the testimony of WW2 cannot be relied upon and the workman himself has no documentary evidence to prove that he had ever been working with the managements. Even it has not clarified as to with whom the workman was employed and who terminated his services. Therefore, issue no. 1 is disposed off by holding that the workman has failed to prove that there was any employer employee relationship in between him and either of the managements. Issue is decided accordingly.
ISSUE NO.2 15 The onus to prove this issue was also upon the workman and he had to prove that his services have been terminated by the management illegally and unjustifiably.
ID NO. 149/12 7/8 16 Keeping in view the finding of the court of issue no. 1 that workman has failed to prove that there existed employer employee relationship in between the parties, it is held that the services of the workman have not been terminated by the management illegally and/or unjustifiably. Issue is answered accordingly. RELIEF 17 Keeping in view the findings of the court of issues no. 1 and 2, it is held that the workman is not entitled to any relief against the management and an award to that effect is passed separately. Reference is answered accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN THE OPEN COURT (S.S. MALHOTRA)
ON 1st May, 2013 PRESIDING OFFICER LABOUR
COURTIX/KARKARDOOMA COURTS,
DELHI
ID NO. 149/12 8/8