Delhi District Court
Between The vs The on 31 August, 2015
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0348092012
ID No. 455/12
Date of institution 01.12.2012
Date of Award 31.08.2015
BETWEEN THE WORKMAN
Sh. Nagdu S/o Late Sh. Baul, R/o B665, Mangolpuri J J Colony, New Delhi83, through
All India General Mazdoor Trade Union (Regd.) AITUC, Address: 170 Bal Mukund
Khand Giri Nagar, Kalkaji, New Delhi19.
AND
THE MANAGEMENT OF
M/s Ambey Polymers, Address: A91, Mangol Puri Industrial Area, Phase2, New
Delhi34.
AWARD
1 By this award I shall dispose off statement of claim of workman as filed by him
directly before the court under Section 104A of the Industrial Disputes Act against the
management.
2 Brief facts stated by the workman in his statement of claim are that that he had
been working with the above said management with hard labour and honestly
continuously since 2009 at the post of 'Karigar' and his last drawn salary was Rs.8,000/
per month. He had not afforded any chance of complaint to the management during his
service tenure, nor there was any charge against him but despite that, the management
had not been providing any legal facilities as provided under Factories Act to the
workman like leave book, wages slip, attendance card, weekly and yearly leave, bonus,
double overtime, ESIC, PF, conveyance allowance, HRA etc. and when the workman
demanded these legal facilities from the management, the management got annoyed and
ID. 455/12 1/20
terminated his services on 11.10.11 without assigning any reason, without issuing
notice/chargesheet and without taking permission from the Delhi Govt. The management
also withheld earned wages of the workman w.e.f. 01.08.11 to 10.10.11 which is violation
of the provisions of section 25 F of the Industrial Disputes Act. It is further stated that
thereafter, the workman sent a demand notice to the management on 02.02.06 by
registered AD/speed post which was duly received by the management but no response
was given by the management to the said demand notice nor paid his legal dues nor he
was reinstated in service. It is further stated that the workman lodged a written complaint
against the management to Regional Asstt. Labour Commissioner, Govt. of NCT of
Delhi, upon which the Labour Inspector visited the establishment of the management to
reinstate the workman in service and also to pay his legal dues but despite best efforts of
the Labour Inspector the management flatly refused to reinstate the workman in service
and pay his legal dues. It is further stated that the management had been running its
establishment in the name and style of M/s Manoj Foot Wear at address A91,
Mangolpuri Industrial Area, Phase2, New Delhi34 and after removing the workman
from service, Sh. Sanjay Gupta, Labour Inspector visited the establishment of the
management on 12.12.11 on his complaint and the proprietor of the management
accepted the workman Sh. Nagdu S/o Late Sh. Baul as its employee before the said
Labour Inspector but despite the directions of the Labour Inspector, the proprietor of the
management refused to reinstate the workman in service and pay his legal dues. It is
further stated that the Labour Inspector called the management for its appearance before
the Labour Department through notice for 14.12.11 but the management did not appear
before the Labour Department. The Labour Inspector again sent notices to the
management on 15.12.11 and 22.12.11 thereby directing the management to appear
before the Labour Department but the management did not appear before the Labour
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Department on said dates also and as such matter could not resolved and ultimately Sh.
Sanjay Gupta, Labour Inspector gave its report on 03.02.12 thereby directing the
workman to raise his dispute before the Labour Conciliation Officer/Labour Court. It is
further stated that the management had been running its establishment in the name and
style of M/s Manoj Foot Wear at address A91, Mangolpuri Industrial Area, Phase2,
New Delhi34 but when the workman filed his dispute against the management before the
Labour Conciliation Officer/Asstt. Labour Commissioner, the management did not
appear before them, he filed a complaint through his Union before ESIC on 16.03.12,
upon which the establishment of the management was inspected by the team of Social
Security Officers on 12.04.12 and during the visit there were 10 workers found working
in the establishment of the management but the establishment of the management was not
found registered under State Insurance Corporation and thereafter, the management was
directed by the team of Social Security Officer to register its establishment under State
Insurance Corporation and the management was issued code number but the management
during visit lodged its name as M/s. Ambey Polymers at address A91, Ground Floor,
Phase2, Mangol Puri Industrial Area, New Delhi34. It is further stated that after
receiving report of ESI inspection, the workman/Union given a information to Labour
Conciliation Officer/Asstt. Labour Commissioner regarding the name of the management
as M/s. Ambey Polymers and thereafter, summon/notice was issued in the name of M/s.
Ambey Polymers but despite notice the management did not appear before the Labour
Department. It is further stated that the management terminated the services of the
workman during ESIC inspection in violation of provisions of section 25 F and hence the
name of the workman is not registered in the list of employees which was prepared
during inspection. It is further stated that the management used to take overtime work
from the workman for four hours per day but the management did not pay overtime
ID. 455/12 3/20
wages despite his repeated requests. It is further stated that the workman is unemployed
despite his best efforts since the date of terminating of his services and as such he is
entitled for reinstatement alongwith full back wages. Therefore, it is prayed that that an
award be passed favour of the workman, thereby directing the management to reinstate
him in service with full back wages including benefits of continuity of service and all
other consequential benefits.
3 The management has contested the present case and filed its written statement
thereby taking preliminary objections that there never existed any employer and
employee relationship between the parties, hence the present reference is not
maintainable; that there was no material before the appropriate Govt. to come to a
conclusion that any industrial dispute ever existed or was apprehended and on this ground
also the present reference is not maintainable; that the present reference has been made in
an stereotype manner and thus not maintainable; that there was no demand upon the
opposite party or its rejection thereof to constitute any industrial disptue and thus the
present case is not maintainable; that the claimant has not come before this Hon'ble Court
with clean hands and thus not entitled to any relief whatsoever; primafacie the alleged
case as filed by the claimant is not maintainable since it is alleged that the claimant joined
in March 2009 and was allegedly terminated on 11.10.2011 but it is a matter of record
that the firm came into existence vide its registration only in November, 2011 and it is
just not possible that prior to existence of the firm/management, the claimant joined the
services and he was allegedly terminated. This clearly shows malafide intentions of the
claimant to harass the management with ulterior motives; that the claimant has annexed a
letter dt. 31.08.2012 from the Labour Department, Nimri Colony, Ashok Vihar, Delhi that
since the dispute could not be resolved, the matter is being referred to the Labour Court
and the statement of claim has been filed under Section 104 A of the ID Act. On merits,
ID. 455/12 4/20
all the facts of statement of claim were denied and in fact the whole defence of the
management revolves around the fact that there existed no employer and employee
relationship between the parties, hence it is prayed that the claim of the workman is not
maintainable and same be dismissed.
4 The workman filed rejoinder thereby denying that there existed no relationship of
employer and employee between the parties or that there was no material before the
appropriate government to come to a conclusion that any industrial dispute ever existed
or was apprehended and it is stated that the conciliation officer before submitting his
report has used his machinery by sending labour inspector at the establishment to know
about the actual facts and labour inspector had duly visited the establishment on 12.12.11
and the management had accepted the claimant as their employee before the labour
inspector. It is further stated that the claimant was working with the management from
March 2009 and was performing the duties as assigned to him from time to time by the
management. It is further stated that the management cannot be allowed to take the
benefit of their own wrong as the management was turning its business in the name and
style of M/s Manoj Footwear and then changed it to M/s Ambey Polymer. All other facts
of the written statement were denied word by word and the workman reiterated and
reaffirmed the facts of the statement of claim as correct 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 the completion of the pleadings, following issues were framed by my Ld.
Predecessor on 24.01.2013:
1 Whether there is any employeeemployer relationship in between the workman
and the management?OPW.
2 Whether the management was earlier running its business activities in the name
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of M/s Manoj Footwear and then changed its name to M/s Ambey Polymers? If so,
when and to what effect?OPW.
3 Whether the workman had ever been working with M/s Manoj Footwear?OPW.
4 Whether the services of the workman have been terminated by the management
illegally and/or unjustifiably?OPW.
5 Relief.
6 After the framing up of the issues, matter was fixed for workman evidence. The
workman examined himself as WW1. The workman also examined two other witness in
support of his case i.e. Sh. Hari Ram, Assistant Director of ESI Branch Officer, Badli,
Delhi, as WW2 and Sh. Sanjay Gupta, Labour Inspector at District North West, Nimri
Colony, Ashok Vihar, Phase IV, Delhi as WW3 (wrongly mentioned as WW2).
Thereafter, Ld. AR for workman closed workman's evidence. On the other hand the
management examined one witness i.e. Sh. Manoj Bansal, Supervisor of the management,
as MW1 and then Ld.AR for management also closed management's evidence.
Thereafter, matter was fixed for final arguments.
7 Ld.AR for workman did not advance his arguments despite granting various
opportunities.
8 On the other hand, Ld.AR for management has filed written arguments. I have
perused the written arguments filed by Ld.AR for management. In support of her
contention, Ld.AR for management has relied upon following judgements:
i P.N. Yadav Vs. C. Bose, 2011 (1) LLJ 316 (Delhi).
ii Rahimuddin & Ors. Vs. Gossini Fashions Ltd., 2011 LLR 824 Delhi
iii Ranip Nagar Palika Vs Babuji Gabhaji Thakore & Ors., 2009 (120) FLR 1007 SC
iv State of Haryana Vs Ramesh Kumar, 2008 (118) FLR 694 SC
v Surendranagar District Panchayat Vs Dahyabhai Amarsin, 2006 (108) FLR 193 (Supreme
ID. 455/12 6/20
Court)
vi Electronics Corporation of India Ltd. Vs Union, 2006 VII AD (S.C.) 461
vii Krishna Bhagya Jala Nigam Vs Mohammad Rafi, 2006 IX AD (S.C.) 112
viii Workmen of Nilgiri Coop. Marketing Soceity Ltd. Vs State of Tamil Nadu & Ors., 2004 LLR
351 (SC)
ix Ravindra Baburao Ambolkar Vs Gujarat Tea Canteen, 1996 LLR 40
x Swapan Das Gupta Vs The First Labour Court, 1976 LabIC 202
xi N.C. John Vs. Secretary, 1973 LabIC 398
xii Soni Photostat Centre Vs Basudev Gupta & Another, 2004 LLR 546
xiii Ravi N. Tikoo Vs Deputy Commissioner & Ors. Vs Deputy Commissioner & Ors., 2006 LLR
496 (Delhi)
xiv Automobile Association of Upper India Vs P.O. Labour Court, 2006 LLR 851 (Delhi)
xv Pratima Seth Vs Management of M/s. Ansal Properties and Industries Ltd., 2007 III AD
(Delhi) 314
xvi Kendriya Vidyalaya Sangathan Vs S.C. Sharma, 2005 LLR 275 (SC)
xvii Municipal Council, Sujanpur Vs Surinder Kumar, 2006 (3) L.L.N. 806 (SC)
xviii S.B. Chengalvaraya Naidu Vs. Jagannnath, AIR 1994 (SC) 853
xix M/s. Purafil Engineers Vs Shaikh Anwar Abdul Rehman, 2000 LLR 268.
9 Record perused. On perusal of record, my issuewise findings are as follows:
ISSUE NO. 1
10 The onus to prove this issue was upon the workman and the workman was
required to prove that there is any employer and employee relationship between the
workman and the management of M/s Ambey Polymers. The workman deposed in his
affidavit Ex.WW1/A in terms of his statement of claim and relied upon documents i.e.
report of labour Inspector which is Ex.WW1/1, complaint dt.16.3.2012 which is
Ex.WW1/2, intimation letter dt. 24.4.2012 sent by ESIC department to the Union which
ID. 455/12 7/20
is Ex.WW1/3, copy of demand notice which is Ex.WW1/4, postal receipts which are
Ex.WW1/ 5 and WW1/ 6, returned envelope which is Ex.WW1/7 and copy of claim
which is Ex.WW1/8.
11 WW1 was cross examined by Ld.AR for management and in cross examination, he
deposed that he did not have any appointment letter from M/s Ambey polymers and he
has no document to prove that he was appointed by M/s Ambey Polymers w.e.f March,
2009. He further deposed that he did not have any pay slip in his possession to show that
he was getting the salary of Rs.8000/ p.m from M/s Ambey Polymers and he has not
filed any complaint before any authority during the tenure of his service that he was not
being given the legal facilities as stated by him in the statement of claim. He further
deposed that he had filed the complaint at Mangolpuri regarding non payment of his
earned wages and only on that Labour Inspector had visited the management but he did
not have any copy of the complaint filed by him at Mangolpuri where office of his Union
is situated. He further deposed that he did not have any document to prove that he had
worked with the management continuously for 240 days here but he has the proof at his
house and he can bring the same. Ld.AR for management had shown the evidence to the
workman and asked as to whether the same bears his signatures to which the answer has
come in affirmative. This witness further admitted that he was working as a Machine Man
and he used to run machine of 'Ram' make and 'Dharam' make. He denied the suggestion
that he was never working as a Machine Man with the management nor he was ever
employed with the management. This witness further deposed that he did not have any
licence for operating any machine and he has not taken any formal training from any
Institute for operating a machine. He further deposed that he has not sent any
notice/demand letter to the management and he has filed claim before Conciliation
Officer against the management but he did not have copy of claim statement filed before
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the Conciliation Officer. Ld.AR for management has shown Ex.WW1/8 i.e. claim filed by
the workman before the Conciliation Officer and after seeing the signatures, the workman
submitted that this was the claim petition filed by him before the Conciliation Officer.
This witness admitted that it is filed against M/s Manoj Footwears and he did not have
any document to show that management was earlier running with the name of M/s Manoj
Footwears or that it subsequently changed its name and started functioning with the name
of M/s Ambey Polymers. He further deposed that the case which he filed against M/s
Manoj Footwears before the Conciliation Officer is still pending before M/s Manoj
Footwears and that claim before the Conciliation Officer was prior in time than the
present statement of claim filed before this court. This witness further deposed that he has
not filed any complaint with ESI office against the present management and did not have
any document to show that the management was deducting ESI or PF contributions from
his salary or was depositing the same with the concerned ESI/PF office. He further
deposed that he did not have any documentary evidence to prove that he was marking his
attendance on attendance card but he can produce the same. Witness was directed to
produce such record on the next date of hearing. This witness further deposed that he has
not filed any document on record to prove that he worked with the management from
March, 2009 to 1.8.2011. He further deposed that he is aware of the fact that M/s Ambey
Polymers started only in November, 2011 and also admitted that the management
purchased the machines in November, 2011 for running its manufacturing activities. This
witness further admitted that ESI Inspection Report Ex.WW 1/3 as filed by his does not
contain any name in the list of workers of the management. He denied the suggestion that
there is no employer and employee relationship in between the workman and the
management. This witness further deposed that he has not brought the documents as were
directed by the court as he could not trace out such documents at his house.
ID. 455/12 9/20
12 WW2 Sh. Hari Ram, Assistant Director in ESI Branch Office, Badli, Delhi
deposed that he has brought the records i.e. notice dt. 24.4.2012 against the complaint by
the All India Trade Union Regd. dt. 16.3.2012 which is already Ex.WW1/2 and report of
physical verifications of the employees of M/s Ambey Polymers dt.12.4.2012 (running
into four pages) which is already Ex.WW1/3 (colly). He further deposed that he had
conducted the survey alongwith his colleague Sh.O. P. Dhawan, Social Security Officer
ESIC, who is present in the court.
13 In cross examination, WW2 deposed that Ex.WW1/ 2 was received in their office
which is dt. 16.3.2012 and admitted that name of the management in the said complaint is
mentioned as 'M/s Manoj Footwears'. He also admitted that in response to the said
complaint, the department had sent a letter dt. 24.4.2012 Ex.WW1/ 3 addressed to the
Union and in the subject, the name of the management is shown as 'Manoj Footwears'.
This witness further admitted that on the basis of said complaint only, physical
verification was done by the department on 12.4.2012 and survey report (ESIC 23) was
also filled up and physical verification report was also made on 12.4.12. He also admitted
that the name of Sh. Nagdu does not appear in physical verification report.
14 WW3 Sh. Sanjay Gupta, Labour Inspector at District North West, Nimri Colony,
A. Vihar, Phase IV, Delhi deposed that he is working as a Labour Inspector from March,
2011 at Nimri Colony, Delhi and on 03.02.2012 he had given a report to All India
General Mazdoor Trade Union and it bears his signatures at point A. The same is already
Ex.WW1/1. He further deposed that he has brought other record i.e. complaint filed by
the Union dt. 7.12.11, notice dt.12.12.11, 15.12.11 and 22.12.11 sent to the management
by him, proceedings held before him. The same are exhibited as Ex.WW2/1 (running
into 6 pages).
15 In cross examination, WW3 deposed that he can not recollect as to what was the
ID. 455/12 10/20
time of his visit of the management and there is no landmark to identify the
management's premises. He further deposed that he visited alone and there was no board
of the Management on the address at A91, Phase II, Mangolpuri Industrial Area, Delhi.
He further deposed that one Mr. Roshan Lal met him at the spot but he did not know the
designation of Sh. Roshan Lal. He further deposed that he asked about his designation but
he did not tell. He further deposed that he asked him as to who is the proprietor/partner of
the management. He further deposed that 810 people were in the factory premises at the
time of his visit but he did not ask as to who were those 810 people. He further deposed
that he wrote his report while sitting his office after about 2 ½ months and further
deposed that from the word 'management' as written in his report, he meant that he talked
to Sh. Roshan Lal. He further deposed that he did not prepare any spot proceedings of the
discussion held in the management's premises. He further deposed that he obtained the
signatures of Roshan Lal on the notice on the spot which notice he had prepared at the
spot and apart from that he had not obtained the signatures of Sh. Roshan Lal on any
other document. He further deposed that he did not obtain the signatures of Sh. Roshan
Lal on his report on which he had mentioned that the said Roshan Lal had admitted the
workman as his employee orally. He further deposed that notice dt.15.12.11 & 22.12.11
were sent by post but he has not brought the postal receipts in token of proof whether any
such notice was ever posted to the management or not. He further deposed that the letter
was sent by ordinary post but he has not brought the despatch record regarding sending
these letters by ordinary post. He further deposed that he did not ascertain at all whether
the notices were ever received by the management or not before writing his report. He
again said that despatch number is written but he have not brought the original register
for corroborating that this is exactly the despatch number by which the letters were sent
to the management. He further deposed that the report was handed over to one Sh.
ID. 455/12 11/20
Rameshwar Bharti of the Union and he came to him office to receive it. He further
deposed that the copy of the report was not sent to the management. He cannot say if no
firm ever existed with the name of M/s Manoj Footwears in the year 2011 at A91, Phase
II, Mangolpuri Industrial Area, Delhi. He further deposed that he had not made any effort
to trace out Manoj Bansal or to serve him with the notice personally and he can not say
whether the firm with the name of M/s Ambey Polymers were registered in the year 2011
on the address i.e. A91, Phase II, Mangolpuri Industrial Area, Delhi. He denied the
suggestion that he never visited A91, Phase II, Mangolpuri Industrial Area, Delhi or that
he has prepared the report while sitting in his office or that his report is false or that he is
deposing falsely.
16 MW1 deposed in his affidavit Ex.MW1/A in terms of the written statement and
relied upon documents i.e. Ex.MW1/1 is copy of letter dt. 30.09.11, Ex.MW1/2 is copy of
rent receipt dt. 30.09.11, Ex.MW1/3 is copy of form DVAT w.e.f. 7.11.11, Ex.MW1/4 is
copy of certificate of registration under Sales Tax w.e.f. 7.11.11, Ex.MW1/5 is a bill dt.
19.11.11for purchase of verticle machine, Ex.MW1/6 is bill dt. 21.11.11 for purchase of verticle injection moulding machine, Ex.MW1/7 is copy of receipt dt. 16.12.11 issued by Mishra Fabrications and Ex.MW1/8 is copy of receipt dt. 17.12.11 issued by MB Engg. Industries. MW1 in cross examination, deposed that he is supervisor in the management and he look after the supervision of the management in terms of quality of the product, packing of the product, and variations in the product etc. He further deposed that partly he look after as to how items/products are to be sent to different customers but he is not concerned basically with the payments from the customers, sometimes he does go to the bank to deposit cheques etc. but he does not sign the cheques. He further deposed that he is supervisor in the management since its inception and prior to this, he was working for another concern which was much earlier and presently he did not remember the name of ID. 455/12 12/20 the concern. This witness denied the suggestion that he is not able to give the name of the concern, since he has never worked with any firm earlier or that he was ever running a firm as proprietor in the name of Manoj Footwear. This witness further deposed that the firm where he used to work earlier was in Wazirpur Industrial Area. He further deposed that the owner of which firm was Sh. Moti Ram at A82, Wazirpur Industrial Area which has since been closed. He further deposed that he was a partner in the said firm at Wazirpur Industrial Area but he did not remember if any partnership deed was executed. He admitted that he did not remember the name of the firm where he was earlier a partner and he was not drawing any amount out of the said partnership. This witness further deposed that he did not know as to who were the other partners in the said firm which continued for a very short time and the firm was dealing in manufacturing of shoes. This witness denied the suggestion that he was not working with the earlier firm or he has cooked up a story or that he was proprietor of M/s Manoj Footwear. This witness further deposed that Mr. Ankit Bansal is his brother and proprietor of M/s Ambey Polymers and Sh. Roshal Lal Bansal is his father. He denied the suggestion that Ambey Polymers is their family business. This witness further deposed that his father is not doing anything and further denied the suggestion that his father is supporting this business in the name of Ambey Polymers. He further admitted that labour inspector had visited the management but he did not know if his father had met the said labour inspector or not. This witness further deposed that the labour inspector had visited the place/office where he sit and the labour inspector had only clarified if Manoj Footwear exists where he am sitting. He denied the suggestion that the labour inspector had not met him since the same does not find mentioned in the report of the labour inspector. This witness further deposed that he is aware that the labour inspector was summoned in the court on behalf of the claimant. Labour inspector's report Ex.WW2/1 was put to this witness by Ld.AR for ID. 455/12 13/20 workman and he was asked whether it bears signatures of his father at point A at page no. 3 of this exhibit, to which answer has come in negative. This witness further deposed that the address mentioned on Ex.WW2/1 is correct address of the management. This witness again said although address is correct but name is written as Manoj Footwear whereas his firm is with the name of Ambey Polymers. For pages no.4, 5 and 6 of Ex.WW2/1, his reply is same. This witness further deposed that his brother Ankit was studying prior to October 2011 and he is younger to him. He further deposed that his father was working his own business of footwear prior to October 2011 and he was working in the name of the firm as Bhagwati Plastic at Tri Nagar. This witness again said he became free after when firm Ambey Polymers was started but he cannot furnish the address of Bhagwati Plastic. He denied the suggestion that there was no firm with the name of Bhgawati Plastic or that he has concocted this fact subsequently. This witness further deposed that there is no vehicle or house in his name but again said there is one Honda City car in his name. He further deposed that at present his consolidated salary is Rs.9000/ and he receive salary in cash but he is not issued any pay slip in this regard. He denied the suggestion that he is not issued pay slip as management is his family business. This witness further deposed that he is living in the same premises i.e. KP 170, Pitampura, Delhi where his brother Ankit resides. He further deposed that he did not know whether premises no. KP 170, Pitampura is 250 sq. yards and he is living at second floor. He further deposed that his brother resides at first floor of this property and his father lives at first floor. The electricity and water bill in the said premises are received separately as there are separate water and electricity connection on each floor. This witness further deposed that he did not pay such bills and such bills are paid by his mother or father. He further deposed that he had earlier been filing his IT return and he cannot tell with conformity whether he can file such IT return or not. Witness was directed to bring his IT ID. 455/12 14/20 return up to date before next date of hearing. This witness further deposed that he has not brought the IT returns in terms of the directions given to him on the last date of hearing. This witness further deposed that he has not taken any PAN card and initially his salary was Rs.8000/ per month and presently Rs.9000/ per month. He further deposed that he has never taken any loan for any purpose. This witness further deposed that the management has not received any demand notice and denied the suggestion that Ambey Polymers was running its establishment in the name of Manoj Footwear. This witness further denied the suggestion that he was the sole proprietor of Manoj Footwear or that he was running Manoj Footwear in the same address or that he, his younger brother and his father, all are running Ambey Polymers and it is our family business or that his father is fully involved in the business. This witness further deposed that his father has never involved himself in the business of Ambey Polymers and denied the suggestion that he has deposed falsely.
17 This is the entire evidence concerning this issue. It is a matter of record that the workman filed an application on 22.02.13 for summoning of certain documents from the management to prove employer and employee relationship. The said application of the workman was dismissed by my Ld. Predecessor vide order dt. 19.03.13. It is also a matter of record that the workman filed an application on 02.12.13 for seeking permission to summon Sh. Prem Singh Malik, Landlord of the premises of the management to prove employer and employee relationship between the parties. The said application of the workman was allowed by my Ld. Predecessor vide order dt. 18.12.13 and only 2 opportunities were given to the workman to summon and examine this witness. Sh. Prem Singh Malik, Landlord of the premises of the management could not serve on 03.02.14, 04.03.14, 03.04.14, 24.04.14, 30.05.14, and 1.08.14. On 25.09.14 Ld.AR for workman sought time to furnish residential address of the management but it is a matter of record ID. 455/12 15/20 that the workman did not furnish residential address of the management on 12.12.14, 08.01.15, 06.02.15, 12.03.15, 21.05.15 and 06.07.15. Since the workman could not examine Sh. Prem Chand Malik, Landlord of the premises of the management despite granting various opportunities, this court has closed the additional evidence of the workman on 06.07.15.
18 The onus to prove employer and employee relationship was upon the workman. I have perused the documents relied by the workman in his evidence which are Ex.WW1/1 to Ex.WW1/8. On perusal of these documents it is revealed that these documents pertain to M/s. Manoj Footwear and not to M/s. Ambey Polymers i.e. the present management. As far as documents Ex.WW2/1 (1 to 6 pages) are concerned, these documents also pertain to M/s Manoj Footwear and not to M/s Ambey Polymers. Therefore, it is held that documents Ex.WW1/1 to Ex.WW1/8 and Ex.WW2/1 (1 to 6 pages) are not helping the workman in establishing employer and employee relationship between him and the management.
19 On the other hand, the management to prove its contention that the management came into existence only in November, 2011 has relied upon documents Ex.MW1/1 to Ex.MW1/8. I have perused the documents Ex.MW1/1 to Ex.MW1/8. As far as document Ex.MW1/1 is concerned, on perusal of same, it is revealed that this is a letter issued by one Sh. Prem Singh Malik, proprietor of Malik Properties, to M/s. Ambey Polymers mentioning therein that A91, Ground Floor, Mangol Puri Industrial Area, PhaseII, Delhi34 has been given on rent of Rs.10,000/ for running M/s. Ambey Polymers since Oct. 2011. As far as document Ex.MW1/2 is concerned, this is a rent receipt dt. 30.09.11 issued by Prem Chand Malik in favour of M/s. Ambey Polymers. As far as document Ex.MW1/3 is concerned, this is Form DVAT 06 in favour of the management w.e.f. 07.11.11. As far as document Ex.MW1/4 is concerned, this is a certificate of registration ID. 455/12 16/20 under Sales Tax in favour of the management w.e.f. 07.11.11. As far as documents Ex.MW1/5 and Ex.MW1/6 are concerned, these are bills dt. 19.11.11 and 21.11.11 in favour of the management for Rs.1,57,500/ each for purchase of one vertical machine and one vertical injection moulding machine issued by M.B. Engg. Industries and Mishra Fabrication respectively. As far as documents Ex.MW1/7 and Ex.MW1/8 are concerned, these are receipts dt. 16.12.11 and 17.12.11 in favour of the management for a sum of Rs. 1,57,000/ issued by M.B. Engg. Industries and Mishra Fabrication respectively. This court is very much convinced with the contention of Ld.AR for management that the management came into existence only in November, 2011. Since the management has been able to prove that the management came into existence only in November, 2011, the question of working of workman since March, 2009 does not arise. 20 Admittedly the workman has no documentary evidence by which employer and employee relationship between him and the management may be established nor Ld.AR for workman could impeach the testimony of MW1 Sh. Manoj Kumar, whereas the documents filed by the management prove that the workman never worked with the management. The workman has also not examined his coworker who may depose before the court that the workman had been working with the management. 21 Law otherwise is well settled in view of judgment titled UCO Bank Vs. Presiding Officer & Anr. 1999 V AD (Delhi) 514 (Delhi High Court) that a fact has to be proved by a person who asserts it and in para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that: "principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on this aspect and the Hon'ble Delhi High Court further held in this judgment that General Principle, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act was that he ID. 455/12 17/20 who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or nonexistence of a fact contended to by a party. It was further held in this judgment that the burden of providing a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof."
22 It was also held by Hon'ble Allahabad High Court in judgment titled Canara Bank Vs. Union of India & Ors. 1998 Lab. I.C. 2923 (Allahabad High Court). The Hon'ble Allahabad High Court held in para 11 of this judgment to the effect that: "section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right and liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Section 101, 103 and 106 of the Evidence Act pertaining to burden of proof in such like case."
23 It was further 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 discharged by evidence of the coworker who may depose before the Court that the workman was working with the management."
24 It was further held in the judgment titled Range Forest Officer vs. S.T. Hadimani, AIR 2002, Supreme Court 1147, in which it was interalia held that "mere a self serving affidavit does not tantamount to prove that there is relationship of employer and employee in between ID. 455/12 18/20 the parties."
25 Judgements relied by Ld.AR for management also perused. Same are applicable into the facts of the present case. Keeping in view the law points cited hereinabove and also keeping in view the fact that the workman has not led any cogent evidence to prove the employer and employee relationship with the management, this court is of the opinion that workman has failed to prove there was any employee and employer relationship between him and the management. This issue is decided against the workman. ISSUE NO.2 26 The onus to prove this issue was upon the workman and the workman was required to prove that the management was earlier running its business activities in the name of M/s Manoj Footwear and then changed its name to M/s Ambey Polymers. The workman in cross examination deposed that he did not have any document to show that management was earlier running with the name of M/s Manoj Footwears or that it subsequently changed its name and started functioning with the name of M/s Ambey Polymers. Since the workman has not led any evidence to prove this issue, hence it is held that the workman has failed to prove that the management was earlier running its business activities in the name of M/s Manoj Footwear and then changed its name to M/s Ambey Polymers. Issue no.2 is decided against the workman.
ISSUE NO.3 27 The onus to prove this issue was upon the workman and the workman was required to prove that the workman had ever been working with M/s Manoj Footwear. Admittedly the workman has filed the case against M/s Manoj Footwear before the Conciliation Officer but the documents relied by the workman are not sufficient to hold that he was earlier working with M/s Manoj Footwear. Since the workman could not bring any documentary evidence on record to prove that he was working with M/s. Manoj ID. 455/12 19/20 Footwear, this issue is decided against the workman by holding that the workman has failed to prove that he had ever been working with M/s. Manoj Footwear. Issue no.3 is decided against the workman.
ISSUE NO.4 28 The onus to prove this issue was upon the workman and the workman was required to prove that his services were terminated by the management illegally and unjustifiably. Since the workman has failed to prove employer and employee relationship between him and the management, the services of the workman cannot be said to have been terminated by the management illegally and unjustifiably. This issue is decided against the workman.
RELIEF (ISSUE NO.5) 29 In view of the findings of the court on issue no.1 to 4, it is held that the workman is not entitled to any relief against the management.
30 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.
PRONOUNCED IN OPEN COURT (RAMESH KUMARII)
ON 31.08.2015 PRESIDING OFFICER:
LABOUR COURTIX/
EAST DIST./KARKARDOOMA COURTS:
DELHI
ID. 455/12 20/20