Delhi District Court
Vide Order No. ... vs S.T. Hadimani on 19 September, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.164/10/99.
Unique ID No.02402C0009841999
M/s. India Craft,
A18, Mathura Road, Sarita Vihar,
New Delhi44
............. Management
Versus
Sh. Balbinder,
C/o Pragatisheel Mazdoor Trade Union,
A100, Indra Kalyan Vihar, Okhla PhaseI,
New Delhi20
..............Workman
DATE OF INSTITUTION : 24.08.1999.
DATE ON WHICH AWARD RESERVED : 16.09.2015.
DATE ON WHICH AWARD PASSED : 19.09.2015.
A W A R D :
1. Vide Order No. F.24(2433)/99Lab./3119397 dated
14.07.99, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
"Whether the services of Sh. Balbinder have been
terminated illegally and/or unjustifiably by the
management, and if so, to what relief is he entitled
ID No. 164/10/99 1/16
and what directions are necessary in this respect?"
2. Claimant's case is that he was working as tailor with the
management since 10.08.1997 at the last drawn salary of Rs. 2500/.
The management was engaged in the business of stitching of cloths
and exporting them. More than 1500 persons were working with it.
The management was not providing him the minimum wages. He
was kept as a bonded labour. His signatures were obtained on blank
appointment letters, papers and vouchers and copy of the same was
not providing to him. He expressed apprehension that the
management may convert those papers into resignation letter etc. The
management was not maintaining his service record. He was not
provided ESI and PF facilities. His services were terminated on
20.02.1999.
3. Written statement is to the effect that the claimant never
worked with it. It was engaged in the business of stitching and
exporting cloths. It had outsourced the business of stitching of cloths
for which it was taking service from M/s. Shiraz Enterprises and M/s.
N.S. Enterprises. The claimant was employee of one of those
fabricators. It had no control over the nature, working hour, facilities
ID No. 164/10/99 2/16
etc. of the claimant as such supervision was being exercised by M/s.
Shiraz Enterprises and M/s. N.S. Enterprises. The management
closed/suspended all its business/manufacturing activities since
31.03.2003 and has not employee on its rolls since 01.04.2003.
Information to that effect has also been sent to ESIC and other
departments.
4. Following issues were framed on 07.09.2001:
(i) Whether there are relationship of employee and employer
between the parties.
(ii) As per terms of reference.
One more following issue was framed on 04.06.2004:
"Whether the management has been closed as alleged by the
management? If so, its effect?"
5. In order to prove the case, the claimant tendered his
affidavit in evidence as Ex.WW1/A on 16.05.2003. An application of
the management for amendment of WS was allowed on 28.05.2004.
Vide amendment, the management incorporated a new fact about its
closure. Thereafter, the claimant tendered his affidavit on closure
point as Ex.WW1/B on 25.11.2004. He deposed that he joined the
ID No. 164/10/99 3/16
management as tailor on 10.08.1997 at the last drawn salary of Rs.
2500/. The management obtained his signatures on blank papers and
vouchers etc. It was engaged in the business of stitching and
exporting of cloths for which it had opened a factory in Okhala and
Mayapuri in which more than 1500 employees were working. He
was working in the factory running at Mathura Road in which more
than 900 persons were working. He further deposed that the
management was not maintaining his service record. He was not
covered under ESI and PF. He was demanding those facilities since
long and persistent demands annoyed the management and hence, his
services were terminated on 20.02.1999 without notice,
compensation, domestic enquiry and chargesheet. Then he
complained to the labour department but the management did not
reinstate him. He sent a demand notice to the management on
12.03.1999 but it was not replied. Thereafter, he filed a case before
conciliation officer but the management did not show any interest and
the matter remained unresolved. He next deposed that he was
appointed by production manager Sh. Jakir Hussain and it was Sh.
Jakir Hussain who had terminated his services.
6. The management examined its General Manager Sh.
ID No. 164/10/99 4/16
R.P. Mukherji as MW1. He deposed that the management was
engaged in the business of stitching and exporting of readymade
garments. That kind of business was totally dependent on the
demands of foreign buyers and policy of Government of India. The
orders from other countries kept on fluctuating and that is why the
management was not maintaining regular and permanent cadre of
employees. In order to full fill the orders received from overseas, the
management had engaged fabricators namely M/s. Shiraz Enterprises
and M/s. N.S. Enterprises. These fabricators used to execute the
work with their own employees strength and material. For the work
done by fabricators, the management used to pay consolidated bills.
It had no control on the nature of work, way of executing job
undertaken by the fabricators/contractors and over their employees.
The management was complying with all the provisions of ESI, PF,
Bonus and Minimum Wages Act for its employees. It was deducting
ESI and PF from the salary of its employee and was regularly
depositing in the concerned departments. But no such ESI and PF
was deducted in respect of claimant because he was never employed
by it. He was employee of one of the fabricators who used to pay
him the salary. The management never paid salary to the employees
of M/s. Shiraz Enterprises and M/s. N.S. Enterprises. On 23.09.2010,
ID No. 164/10/99 5/16
MW1 proved documents from Ex.MW1/1 to Ex.MW1/3 by bringing
the original in the court. On 03.11.2009, he had brought the original
of Ex.MW1/4 and Ex.MW1/5 also.
7. No one appeared from the side of workman since
05.08.2014 to argue the case. No one appeared for the management
also to argue the case.
Issue No. 1:
8. WW1 deposed that he joined the management on
10.08.1997 and his services were terminated on 20.02.1999. The
management was not providing him the facilities of ESI and PF. The
management did not maintain his service record. To prove his
relationship with the management, he is heavily relying upon the gate
passes Ex.WW1/3 to Ex.WW1/8.
On the hand, contention of the management is that the
claimant was never employed by it. He was employee of either M/s.
Shiraz Enterprises or M/s. N.S. Enterprises because the management
had outsourced its stitching business to those fabricators. These
fabricators had employed some workers on whom the management
ID No. 164/10/99 6/16
had no control. The management had not paid salary to the workers
of the fabricators at any point of time.
9. Now, it is the law of the land that onus of proof of
relationship of employer and employee is upon the party who alleges
that fact. In the case in hand, it has been alleged by the claimant and
hence onus is upon him. It was held in Range Forest Officer Vs.
S.T. Hadimani, 2002I, LLJ, 1053 that :
".....In our opinion the Tribunal was not right
in placing the onus on the management
without first determining on the basis of
cogent evidence that the respondent had
worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement ID No. 164/10/99 7/16 for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
It was held by the Apex Court in R.M. Yallatti Vs. Assistant Executive Engineer, 2006 (108), FLR 213 SCC as under : "Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the aforestated judgments we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In case of termination of services of daily wages earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workmen (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wages register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter ID No. 164/10/99 8/16 on facts of each case. The above decisions however make it clear that mere affidavits or self serving statement made by the claimant / workmen will not suffice in the matter of discharge of the burden placed by law on the workmen to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case."
Following observations of the Hon'ble Apex Court in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, AIR 2006 SC 110 are relevant: "10. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calender months preceding the date of termination.
ID No. 164/10/99 9/16What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no coworker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 month of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Dispute Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & ID No. 164/10/99 10/16 situation and in the light of the law on the subject, we find that the workman -
respondent is not entitled for the protection or compliance of Section 25F of the Act before the service was terminated by the employer. As regards noncompliance of Section 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
10. Employment with any company may be proved with the help of documents like appointment letter, attendance register, wage ID No. 164/10/99 11/16 register, ESI or PF certificates. The claimant did not place on record any such document. He is heavily relying upon gate passes. Name of the management is not written on gate passes Ex.WW1/4, Ex.WW1/5, Ex.WW1/7 & Ex.WW1/8. Its name is mentioned only on two passes Ex.WW1/3 & Ex.WW1/6. The claimant did not place on file the original of these gate passes. The said passes have been signed by a person who have been described as authorized signatory.
In statement of claim and affidavit in evidence, the claimant did not disclose the name of that authorized signatory. In crossexamination, he deposed that he cannot give the name of the person who signed the gate passes on behalf of management. Proper way for proving those passes was to examine the said authorized signatory. He has not been examined by the claimant. So, the gate passes have gone unproved.
On the other hand, the management placed on record a register titled as "adult workers' register" containing the names of the worker who were working with it up to the year 1991. It contains names of 240 workers but the name of the claimant is conspicuously missing from it. The management also filed ESI inspection book Ex.MW1/2. As per page no. 6 of that document, the ESI inspector had visited and checked the ESI compliance from April, 1996 to November, 2000 and it was found OK. The management also filed ID No. 164/10/99 12/16 the inspection book of PF as Ex.MW1/3. As per page no. 8 & 9 of those documents, the PF inspector had checked the PF record of the management from April, 1997 to May, 1998 and from June, 1998 to June, 1999 respectively and he found no shortcoming the record. The management had deposited the ESI contribution of its worker in the concerned office. ESI returns from April, 1997 to September, 1997 is on the file. From that document, it becomes clear that the management had deposited ESI contribution for 329 workers. Name of the claimant is not appearing in that list. In the same way, the management had deposited the ESI contribution of its worker from October, 1997 to March, 1998 on 12.05.1998. Again the name of the claimant is missing in that register. The management has also placed on record the PF return vide which it deposited the PF of the workers from 01.04.1997 to 31.03.1998 and from 01.04.1998 to 31.03.1999.
In both returns, the name of the claimant is missing. The management has also placed on record "eligibility register" of its employees. The name of the claimant is not mentioned in that register. The documents filed by the management are the documents by which the relationship of employer and employee may be proved.
It becomes clear from those documents that the claimant was not employed with the management.
ID No. 164/10/99 13/1611. MW1 deposed that the management had not given contract to M/s. Shiraz Enterprises and M/s. N.S. Enterprises in writing. But he placed on record the bills of those two enterprises vide which payment was made to them for the work done by them.
As per receipts dated 25.12.1998, 20.02.1999, 12.01.1999, 21.12.1998, 27.11.1998, 24.10.1998, 27.08.1998, 13.09.1998, amount of Rs. 24,529/, Rs. 81,150/, Rs. 56,615/, Rs. 51,000/, Rs. 78,045/, Rs. 64,272/, Rs. 93,695/ and Rs. 79,190/ was paid by the management to M/s. Shiraz Enterprises and M/s. N.S. Enterprises. It is mentioned in those receipts that the said amount was for fabrication charges. It means that the some stitching work had been outsourced by the management to M/s. Shiraz Enterprises and M/s.
N.S. Enterprises. As per MW1, the employees of these enterprises used to work in the factory premises of the management on the machines of those fabricators. The management did not have control over them as they were the employees of the fabricators. The claimant has failed to prove his relationship of employee with the management. It seems, he was employed with any of the two fabricators and that is why he was issued the gate passes Ex.WW1/4, Ex.WW1/5, Ex.WW1/7 & Ex.WW1/8. Due to that reason, the name of the management is not mentioned on those passes.
ID No. 164/10/99 14/1612. In view of above discussion, this issue is decided in favour of management and against claimant.
Issue No. 3:
13. After amendment of written statement, the claimant tendered his affidavit in evidence as Ex.WW1/B stating that the management was still running the business at 368, Udyog Vihar PhaseI Gurgaon, Haryana. In support of his contention, he did not place any document. On the other hand, evidence of MW1 on closure point is corroborated by letters dated 18.04.2003 Ex.MW1/4 and Ex.MW1/5 written by management to the office of PF commissioner and ESI respectively mentioning that the company had suspended all its activities w.e.f. 31.03.2003 and that it had no employee working with it since 01.04.2003. On 03.11.2003, the management had filed a return in the office ESIC mentioning that no employee was working with it. On the strength of these documents, it is held that the management has closed its activities w.e.f.
31.03.2003.
ID No. 164/10/99 15/16Issue No. 2:
14. The claimant has failed to establish relationship of employer and employee between management and him. If he was not employed with the management there arises no question of his defence. So, this issue is decided in favour of management.
Relief:
15. Consequent to decision on issue nos. 1, 2 & 3, it is held that the claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own cost. Reference is answered accordingly.
16. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 19.09.2015. POLCXVII/KKD, DELHI.
ID No. 164/10/99 16/16