Delhi District Court
Smt. Kusum Sharma vs M/S. Ex. Service Men Placement Services on 6 May, 2014
IN THE COURT OF SH. SANJEEV KUMAR,
ADDL. DISTRICT & SESSIONS JUDGES
PRESIDING OFFICER, LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 202/11 (OLD ID No. 410/10)
Smt. Kusum Sharma,
W/o. Sh. Lalit Mohan Sharma,
C/o. Avdhesh Singh,
796, Pocket - I, Paschimpuri,
New Delhi : 63.
........Workman
VERSUS
M/s. National Fertilizers Ltd.,
B Block, Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi : 03.
M/s. Ex. Service Men Placement Services,
WZ30A, Bal Udyan Marg,
Uttam Nagar Extn.,
New Delhi : 58.
......Management
Date of Institution : 06.04.2010
Date of award
: 06.05.2014
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 1 out of 22
AWARD
The Secretary (Labour), Govt. of NCT, Delhi vide order
No. F24 (207)/Lab./SD/2008/3278 dated : 30.03.2010 referred the
present industrial dispute between the parties for adjudication to the
Labour Court on the following terms of reference :
"Whether there existed an employer
employee relationship between the
management and Smt. Kusum Sharma W/o.
Sh. Lalit Mohan Sharma and if so, whether
the services of said workman Smt. Kusum
Sharma have been illegally and/or
unjustifiably by the management; and if yes,
to what relief is she entitled and what
directions are necessary in this respect?"
2 The brief facts as stated in the statement of claim are that
the claimant Ms. Kusum Sharma was employed as Junior
Stenographer with the management since 10.02.1994 at the monthly
salary of Rs. 3600 pm. The management no. 1 appointed the
workman by violating the Contract Labour Regulation and Abolition
Act 1970 Act and claimant has no relation with contractor and she
was working under the supervision and control of the management
and the contract between the management and the contractor was
sham and camouflage. She had cleaned record and management has
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 2 out of 22
no complaint against her. There were more than 100 employees
working with the management hence management come under
Industrial Employment (Standing Orders) Act, 1946 and the services
of the workman come under Modal Standing orders. On 31.3.96 she
was terminated from the service without any notice and assigning any
reasons though she has completed 240 days in a calender year.
When she was removed from the service the other junior employees
were working and management is taking the said work performed by
the claimant from other Jr. employees and new employees. She filed a
writ petition before the Hon'ble High Court on the wrong legal advice
but since High Court has no power to decide the issue therefore, she
withdrawn the said writ petition with the liberty to raised the dispute
before labour tribunal and therefore, she filed a complaint before
labour department on 18.1.08 which was referred to this court.
Hence, she claimed for reinstatement alongwith back wages.
3 Per Contra the management no.1 in written statement
denied all the contents of statement of claims and taken the
preliminary objection that management is a government of India
undertaking under the control of Department of Fertilizer, Ministry
of Chemicals and Fertilizers, Govt. of India and appointments are
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 3 out of 22
made in accordance with the provisions and procedure detailed in
recruitment Rules and by passing recruitment rules are void ab initio
and are of no consequences. Further, it is stated that claimant was put
out of service on 31.3.96 without any notice nevertheless she worked
for more than 240 days per year. It is further denied that she was
appointed in violation of contract labour (Regulation & Abolition )
Act, 1970 and she has no relation with R2 and she worked under the
control and supervision of M1 and the contract between the M1 and
M2 is sham and camouflage and workman is employee of
management no. 1. Further objection was taken that workman has
stated that she filed the writ petition before High Court of Delhi but
has not filed any details of the writ petition or order that she has given
liberty to file complaint before Labour Tribunal. Further it is stated
that in view of Secretary, State of Karnataka & Ors vs. Uma Devi and
Ors. Reported in 2006 (4) Scale 197 the persons who are not recruited
in accordance with the recruitment rules are not entitled to claim any
relief on that account.
4 On merits all the contents of the claim petition were
denied. It is denied that workman was employed after written test on
the post of Jr. Steno on 10.2.94. It is also denied that last drawn
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 4 out of 22
wages of the workman was Rs. 3600/ or that workman was
terminated on 31.3.96 without any notice. It is also denied that
workman worked for more than 240 days in a year. It is stated that
she was not employee of the management hence the question of
service record or satisfaction with her work does not arise. Further it
is denied that contract between M1 and M2 was sham & camouflage
contract and the workman was employed in violation of contract &
Regulation act.
5 The rejoinder to the written statement filed by workmen
in which all the contents made in the written statement are denied as
incorrect. The workmen reiterated the averments made in the
statement of claim.
6 From the ordersheet dt.06. 11. 2012 it is revealed that the
Management no.2 could not be served and on the prayer of AR for
workman management no.2 was dropped.
7 From the pleading of both parties, vide order dated
06.11.2012, the following issues have been framed :
1. Whether there existed any
relationship of employer - employee
between the parties?
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 5 out of 22
2. In terms of reference.
3. Relief
8 In order to prove its case workman has examined herself
as WW1/A and also filed her evidence through an affidavit
Ex.WW1/A and also relied upon the documents Ex. WW1/1 to 1/9.
She was cross examined at length.
9 On the other hand management has examined Sh. Y K
Bhatt through affidavit vide Ex. MW1/A and also relied upon
documents Ex. MW1/1 to 1/7.
10 I have heard the arguments from Sh. Neeraj Choudhary,
AR for workmen and Sh. Sanjeev Kumar Saxena, AR for the
management. I have considered the arguments as well as written
submissions of both the parties. My issue wise findings are as under:
ISSUE NO. 1
Whether there existed any
relationship of employer - employee
between the parties?
11 The management no.1 has denied in the WS that the
workman is an employee of management or her services was
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 6 out of 22
terminated by management.
12 I am agree with the contention of Ld AR for management
that onus is upon the workman to prove that she is the employee of
the management and has completed 240 days in the employment in
one calender year. In N.C. John Vs. Secretary Thodupuzha Taluk
Shop and Commercial Establishment Workers Union and others
1973 Lab, IC 398, the Kerala High Court held that:
"the burden of proof being on the workmen to establish
the employeremployee relationship and adverse inference
cannot be drawn against the employer that if he were to
produce books of accounts they would have proved
employeremployee relationship."
13 In R.M.
Yellatti Vs. Assistant Executive Engineer
(2006)1 SCC 106 . the Supreme Court observed as follows:
"...........However, applying general principles and on
reading the (aforesaid) 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 workman stepping in the
witness box. This burden is discharged upon the
workman adducing cogent evidence, both oral and
documentary. In cases of termination of services of
dailywaged earners, there will be no letter of
appointment or termination. There will also be no
receipt or proof of payment. Thus in most cases, the
workman (the claimant) can only call upon the
employer to produce before the court the nominal
muster roll for the given period, the letter of
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 7 out of 22
appointment or termination, if any, the wage register,
the attendance register, etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case."
26. Applying the principles laid down in the
above case by this Court, the evidence produced by
the appellant has not been consistent. The appellant
claims that the respondent did not work for 240 days.
The respondent was a workman hired on a daily wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service."
14 The following principles laid down by the Supreme
Range Forest Officer Vs. S.T. Hadimani
Court in (2002) 3 SCC 25 :
"3............ 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 his 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. Filling 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 for this period was produced by the workman. On the ground alone, the award is liable to be set aside."
Therefore, the petitioner's contention that his ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 8 out of 22 statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."
15 To prove that claimant is employee of management ,Ld. AR for the workman has relied upon the testimony of workman as she has deposed in her affidavit Ex. WW1/A almost the same facts as stated by her in her statement of claim. She has deposed that she was employed as junior Steno since 10.02.1994 with management no.1 and worked till 31.05.1996. In her cross examination she has stated that she came to know about the vacancies in the management through the advertisement in the newspaper but she has no copy of the newspaper. She applied the same through an application but she do not have copy of the application. She stated that she received the call letter for interview however she do not recollect as to when the interview was conducted. She further stated that she do not have the copy of said call letter received from the management. She admitted that no appointment letter was issued to her, however, she was appointed on the past of Stenographer at the monthly salary of Rs. 3600/ p.m.. She stated that management was not deducting the PF from her salary and she used to get leave encashment. She further submitted that she worked for more than two years with the management. During her service tenure management advertised the ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 9 out of 22 vacancy in the mid of 1994 and she has applied the same pursuant to the said advertisement and she appeared in the test conducted by the management for the post of stenographer however, she could not qualify the same held by the management. She continuously worked after disqualifying the test. She further stated that she was permanent employee of the management. She had not made R2 as a party however, she do not know contractor i.e. M3 M/s. Ex Service Man Placement Service. Her salary was being paid by Subash Sharma official of the management no. 1 i.e. National Fertilizers Ltd. 16 On the other hand, Ld. AR for management has relied upon testimony of MW1 Sh. Y.K. Bhatt Dy. Manager HR. MW1 in his testimony led by way of affidavit EXMW1/A NFL has deposed that management has framed recruitment rules EXMW1/2 and any appointment made in violation of recruitment rules are void ab initio. Further it is stated that NFL vide letter dt. 28.07.1993 awarded contract for engagement of manpower to the management no.2. and prove the letter dt. 28.07.1993 in this regard as EXMW1/3. He further deposed that in pursuance to that contract management no.2 engaged the service of claimant with effect from 10.02.1994 for the job of Steno/Clerk. He further deposed that claimant her self in the writ ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 10 out of 22 petition no. 4234 EX.MW1/4 has admitted that she was being paid salary through management no.2. He further deposed that management no.2/ respondent no.2 was informed vide letter dt. 01.03.1996 EX.MW1/5 that it would not be requiring the person supplied from them. In his cross examination he stated more than 20 workers were working with the management on contract at relevant time. He is not aware if any registration under Contract Labour (Abolition and Regulation) Act was done by management or contractor had taken any license under the said Act. He denied that contract is sham and camouflage. He admitted that management used to dictate work to claimant and claimant used to report to the concerned official of management.
17 Thus on the perusal of testimony of both claimant and management no1 witness, I find that undisputed fact emerged that claimant has worked with the management no.1 from 10.02. 1994 till 31.03. 1996. The only dispute is that whether she worked as employee of management no.1 employee or as contract employee employed by Management no.2. Though claimant has claimed that she was employed by management no.1 but as evident from aforementioned judgements mere self affidavit of employee is not sufficient to prove ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 11 out of 22 the employeremployee relationship but claimant need to produce documentary evidence like appointment letter, wage register, muster roll or any other document to prove that she was employed by the management. In Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006LLR551 is concerned undoubtedly in this case our own High Court held as under: "14. 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 record, deposit of provident fund contribution and employees state insurance contributions etc. 18 She has proved on record document Ex. WW1/1 to 1/9. The WW1/1 to 1/3 are the complaints filed before conciliation officer, in my view said complaint do not prove that workman was employee of the management, WW1/4 is the reply of the management filed before Labour Inspector as per the reply the claimant was employee of the contractor M/s. M/s. Ex Service Man Placement Service add. :
WZ30A Bal Udyan Marg, Uttam Nagar Extn. New Delhi : 58. Thus these documents also do not prove the relationship with the management are of course against her. WW1/5 is memo of parties of the Writ petition no. 4334/96 filed by the workman alongwith other ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 12 out of 22 persons against the management and also the order dated 30.11.06 as per which the petitioner counsel has sought permission to withdraw the petition and in view of her statement the writ petition is dismissed as withdrawn. This document also do not prove that the workman is the employee of the management. WW1/6 is photocopy of the EPF contribution but on perusal of the same, I find that same is not legible and it is not possible to find out from the said document who is the employee. WW1/7 to 1/11 are the attendance register of the management no.1 from the month of April, 95 to Jan, 96 and then March 96 which bears the name of the workman. In the cross examination, no suggestion has been given to the witness that these are not the photocopies of the attendance register of the management.
Hence, from these documents it is proved that claimant was marking her attendance with the management from April, 95 till Jan, 96 and then in the month of March, 96. Thus the workman has been able to prove that she has worked 240 days in a year with the management no.1. But in my view attendance register only proved that claimant is working in office of management for the said period, the fact which is undisputed. But this attendance register do not proved that she was employee of management no.1. and not deployed by management no.
ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 13 out of 22 2 to work with Management no.1. Hence claimant has failed to produce any document to prove that she was employed by management no.1. The Ld. ARM has contended that she was the employee of the contractor. She has herself stated in the writ petition before the Hon'ble High court Ex. MW1/4 that she was being paid salary through R3 claimed to be contractor. The relevant para of her petition is reproduced as follows :
'.....that the company had engaged the petitioner directly and the petitioners worked to the satisfaction of their immediate superior officers and for the post on which they worked..........the petitioner no. 1 to 3 were paid salary directly by the contractors whereas petitioners 4 to 7 were paid salary through Ex. Service Man Placement R3 claimed to be contractor.
The modus apprendi for payment was that the petitioners used to raise bill and were paid month to month. The copy of the such bill is annexure II..."
19 Hence, this clear admission of the claimant in the writ petition proved that she was marking her attendance with the management as employee of the contractor and she was deployed to work with the management. Further from the perusal of the writ petition it is evident that she was also being paid salary through R3. Hence it is evident that claim was not employee of the management but was the employee of the contractor and was deployed to work at the management place because management permanent employment ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 14 out of 22 was prohibited in management which is reflected from the judgement National Fertilizers Ltd. And Others vs. Somvir Singh (2006) SCC
493. 20 Further the documents MW1/3 which is letter dt 26.07.2003 , it is proved that management has given contract to the management no2 for providing man power which include 4 stenos. Though management has failed to produce any document that claimant was one of the man power supply by the contractor but over all circumstances, and the admissions by the claimant in the writ petition itself shows that she was deployed by the contractor to the management in pursuing of the contract 28.7.93 to work as steno. Though the claimant claim that she was appointed with the management through interview to our has filed to prove any document on record that management has issued any developments or taken any interview. Admittedly, that management is a government undertaking therefore it cannot appoint any person beyond recruitment rules. On perusal of MW1/2, it is evident that management has 4 type of posts group A to D and as per the rules 16(3) all post of group B, C and D shall be in the pay scale of 106018700 and the vacancies are filled through the direct ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 15 out of 22 recruitments 16 (4) the recruitment will be made through the recruitment. As per rule 16 (6) the vacancies up to pay scale of Rs. 1250 will be notified to the employment exchange under Employment exchanges (Compulsory Notification of vacancies) Act 1959 and such vacancies filled up by advertisement certificate from the employment exchange concerned or through the advertisement in the press and appointment will be done by selection committee. 21 Since the management is a government company it is highly unlikely that if she was appointed by the management on permanent basis, she would not have been given appointment letter. The claimant has not claimed that she was placed in any particular pay scale which also clearly reflect that she was not appointed by the management. Rather she has deposed that she was paid consolidated salary of Rs 3600 per month which also prove that she was not permanent or regular employee of management.
Further, the claimant herself admitted that she has participated in the examination of Steno post when management advertised for Steno post the vacancies in mid of 1994 but she could not qualify. Hence, if she was already permanent employee of the management then why he again applied for the said post. Thus it ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 16 out of 22 shows that claimant was very well aware that she was not the employee of the management and is employee of contractor and that is why she has tried to secure appointment in management no.1 by appearing in the exam conducted by management no.1. This also prove another fact that management tried to fulfil the vacancies as per the rules mentioned in the recruitment rules by the removing earlier method of appointment through contractor and workman was given fair chance and it appears that due to said reason when management has terminated contract of the M/s.Ex serviceman Placement service vide 1.3.96 Ex. MW1/5 and that is why claimant has also been discharged from service as contract of the contractor was expired. All these circumstances taking into account proved that claimant was employee of the contractor and not of management and her service was not terminated illegally and/or unjustifiably by the management because of reason that management has employed regular employees after conducting examination as per recruitment rules.
22 The another contention of the AR for the workman is that contract between the management and the contractor is sham & camouflage. Ld AR for workman has argued that since claimant was ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 17 out of 22 working under the supervision and control of management no.1 which is admitted by MW1 therefore it is proved that contract between M1 and M2 was sham and camouflage and hence it is to presume that claimant is employee of principal employer i.e. management no.1.
18. Undoubtedly MW1 in his cross examination has admitted that management used to dictate worked to claimant and she used to report to the concerned official of management. In judgement The management of Ashok Hotel vs Their workman W.P.(c) 14828/2006 dt. 19.12.2013, Bharat Heavy Electrical Ltd vs State of U.P. 2003111LLJ 216, GM, ONGC Shilchar vs ONGC Contractual worker Union 2008LLR 801. In these case Higher courts has held while relying upon Hussain bhai calicut vs Alath Factory Thozhilali Union Khozikhode AIR 1978 SC 1410 that :
"5. The true test may, with brevity, be indicated once again. Where a worker or group of workers laborers, to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth though drapped in different perfect paper arrangement, that ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 18 out of 22 the real employer is the Management, not the immediate contractor, Myriad devices, halfhidden in fold after fold of legal form depending on the degree of concealment needed the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer based on Articles 38, 39, 42,43 and 43A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law an not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make believe, trappings of detachment from the Management cannot snap the real lifebond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
19 But in my view to prove that contract is sham something more is required to proved beside economic control. In International Airport Authority vs. International Air Cargo Workers union and another 2009 (13) SCC374, it is held that " The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 19 out of 22 proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
19 Hence, in these circumstances, I hold that contract cannot be held to be sham or camouflage merely because claimant was reporting to duty to management no. 1 or working on their dictation. As discussed above she was getting salary from contractor. The workman has failed to prove that she was the employee of the ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 20 out of 22 management. The claimant has given no suggestion that management no. 1 was having any authority to remove or take disciplinary action against her. It appear that management has entered into contract to supply man power as stop gap arrangement for short period which prove from the fact that management has issued the advertisement for regular employment in year 1994 and conducted exam in which claimant has also participated but failed in the said exam. Hence in this circumstances it cannot be said that contract between contractor and management was sham and camouflage. Therefore, in view of above discussion, I held that claimant has failed to prove that there was any employeremployee relationship between her and management no.1. Issue no.1 decided accordingly. ISSUE NO. 2
In terms of reference.
20 Since the workman has failed to prove that she was the employee of the management there fore, no question of illegal termination of the workman by the management arise. As stated above since claimant was the employee of the contractor and whose contract was terminated by the management vide 1.03.96 therefore, in these circumstances, if management has disengaged the claimant ID NO. 202/11 Kusum Sharma vs. National Fertilizer Ltd. Page no. 21 out of 22 same cannot be said to be illegal and/or unjustifiable termination. Hence, in these circumstances I hold that claimant has failed to prove that her services were terminated legally and/or justifiably. Issue no. 2 decided accordingly.
RELIEF 21 In view of my finding on issue no.1 and 2, I held that claimant is not entitle to any relief and her claim petition is dismissed. Reference is answered accordingly.
22 Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The claim is answered accordingly. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in Open Court on this 6th May, 2014.
(SANJEEV KUMAR ) Presiding Officer Labour Court, Karkardooma, Delhi.
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