Delhi District Court
Between The vs The on 8 December, 2014
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0095552008
ID No. 58/08 (old), 799/14 (new)
Date of institution 12.02.2008
Date of receiving of present case by way of transfer 19.08.2014
Date of Award 08.12.2014
BETWEEN THE WORKMAN
Sh. Bramha Pal Singh, S/o Sh. Ram Dhan Singh, R/o D58, Sourav Vihar, Jaitpur,
Badarpur, New Delhi110044.
AND
THE MANAGEMENT OF
M/s. Max Devki Devi Heart & Vascular Institute, Press Enclave Road, Saket, New
Delhi110017.
AWARD
1 By this award I shall dispose off the statement of claim of the workman as filed
by him directly under the provisions of the Industrial Disputes Act against the
management.
2 Brief facts as stated by the workman in his statement of claim are that he was
employed with the management since December 2006 as Mechanic in maintenance at
Engg. Department and his last drawn salary was Rs.19,000/ per month and the
management was fully satisfied with his work and they had no complaint against his
sincerely in work. It is further stated that the services of the workman were all of a
sudden terminated by the management on 01.05.2007 and other person was appointed
on his post and his services were terminated without making his legal dues and no
opportunity was given to him to defend his service. It is further stated that the services
I.D.No. 58/08 (old), 799/14 (new) 1/11
of the workman were terminated without assessing any reason for it and at the time of
terminating of his services, neither he was given any reason in writing nor he was given
any notice for paid in lieu of that. It is further stated that the management is habitual of
taking signatures of the workman on blank paper and voucher before joining the
service. It is further stated that the workman was neither offered service compensation
nor the management paid his earned wages, thus termination of his services was
completely illegal and even the management never paid salary according to his
designation and in the same fashion management was not being given normal legal
facilities to him. It is further stated that when the workman along with his coworkers
asked for providing these legal facilities like provident fund, bonus, overtime, yearly
leaves etc., the management got annoyed on all of these demands and got paid off the
workman in this illegal way. It is further stated that the workman was a figurehead
officer in the institute but the management never provided him Administrative Power
of financial power and he was performing his duties as only labour in the institute. It is
further stated that after illegal termination of his services, the workman approached the
management and requested to take him back on duty and also top pay his own wages,
but the management did not pay any heed to the request of the workman. It is further
stated that the workman being aggrieved served a demand letter to the management by
courier on 12.05.07 but the management did not reply satisfactory. The management
has absolutely violated the law and has victimized the workman on their on accord,
which is quite illegal and unjustified with the workman. In these circumstances, it is
prayed that the management may be directed to reinstate the workman with continuity
of service, full back wages at the rate of prevailing of minimum wages and other dues
with 18% bank interest as the workman is unemployed till date and is passing very
I.D.No. 58/08 (old), 799/14 (new) 2/11
hard days with his family.
3 The management has contested the present case and filed written statement
stating therein that the management is a super specialty hospital run and managed by
the society called Devki Devi Foundation and there are however certain areas which
are not directly related to or concerned with the core activities of Hospital. It is further
stated that the management assigns such type of activities to some outside agencies
who are specialized in providing such services and are in regular business of providing
similar services in the hospital and the management engaged the services of one M/s.
Unisol Infraservices Pvt. Ltd. having its office at B21, 2nd Floor, Sector58, Noida
(Gautam Budh Nagar), U.P for providing expert services for maintaining electrical
equipment and D.G. Sets install at the premises of the management. It is further stated
that there are 89 employees of said M/s. Unisol working in the premises of the
management to provide above specialized services and upon recommendation of M/s.
Unisol the management entered into an agreement with Sh. Brahm Pal/claimant in the
present case whose work was to supervise the work of the person employed by M/s.
Unisol. The agreement dt. 21.12.07 is annexed herewith as Annexure P1. It is further
stated that the said claimant was associated with the management as consultant on
principal to principal basis and his retainership fee was Rs.19000/ after deducting
11.33% of TDS and the claimant was required to supervise the work and he used to do
that by visiting the premises of the management at any time during a day i.e. he used to
work for 34 hours a day. It is further stated that as per the terms of agreement either
party can terminate the agreement by giving 30 days notice and accordingly, the
management due to his unsatisfactory performance terminated the said agreement by
giving 30 days notice. In preliminary objections the management stated that the present
I.D.No. 58/08 (old), 799/14 (new) 3/11
claim is untenable in law as the management has no nexus whatsoever with the
claimant in question and as such there exists no relationship much less that of master
and servant between the parties as the claimant was never in the employment of the
management and he was engaged as retainer only and his work was only to supervise
the work of contractor's workers by advising them on complicated issues and
sometimes to render expert service. As such there existed no relationship much less
that of master and servant between them. It is further stated that the claimant while
filing the present dispute has violated the basic principle of coming to the court of law,
as he is guilty of concealing material facts and has not approached to this court with
clean hands. On merits, it is denied that the claimant was working as mechanic at Engg.
Department and it is categorically stated that his services were engaged on retainership
basis for supervising the mechanics of the contractor M/s. Unisol. It is also denied that
the services of the claimant were illegally terminated by the management. All other
facts of statement of claim are denied word by word and it is, therefore, prayed that the
claim of the claimant is liable to be dismissed and may kindly be dismissed.
4 The workman filed rejoinder in which he denied all the contents of the written
statement and 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 pleadings, the following issues were framed on
02.06.08: 1 Whether there existed any employee employer relationship between the workman and the management?
2 If yes, whether the services of the workman were terminated illegally by the I.D.No. 58/08 (old), 799/14 (new) 4/11 management? 3 Relief. 6 After the framing up of the issues, matter was fixed for workman's evidence.
The workman examined himself as WW1 and then he closed his evidence. On the other hand, the managements examined one Sh. Ravi Ranjan, Assistant Manager (Human Resources) of the managements in support of its case as MW1. He was not crossexamined by Ld. AR for workman despite giving opportunities. The management did not examine any other witness and closed its evidence. Thereafter, matter was fixed for final arguments.
7 Ld. AR for workman has not advanced his arguments. On the other hand, Ld. AR for management has advanced his arguments. During the course of arguments, Ld. AR for management has submitted that the workman was associated with the management as consultant on principal to principal basis and his retainership fee was Rs.19,000/ after deducting 11.33% of TDS and workman was required to supervise the workman and he used to do that by visiting the premises of the management at any time during a day. Ld. AR for the management further submitted that workman never ever in the employment of the management as he was engaged as retainer and his work was only to supervise the work of contractors workers by advising them on complicated issues and sometime to render expert services. Ld. AR for management further submitted that workman in his cross examination has admitted that he was not getting PF and ESI benefit and other legal facility as provided to regular work force of management and TDS was deducted from his monthly retainership fee and apart from the retainership fee he was not getting any other facility afforded by the other work force of the management and as such there was no employer and employee relationship I.D.No. 58/08 (old), 799/14 (new) 5/11 between them and on these grounds it is prayed that the claim of the workman is liable to be dismissed and may kindly be dismissed.
8 Record perused. On perusal of record, my issuewise findings are as follows: ISSUE NO. 1 9 Onus to prove this issue was upon the workman and the workman was required to prove that there was any employer and employee relationship between him and the management. The workman in his statement of claim stated that he was employed with the management since December 2006 as Mechanic in maintenance at Engg. Department and his last drawn salary was Rs.19000/ per month and when he demanded legal facilities, the management terminated his services illegally w.e.f. 01.05.2007. On the other hand, the management in its written statement stated that the claimant was working with the management as per agreement dt. 21.12.06 as a retainer and as such there was no employer and employee relationship in between the parties as the claimant never worked with the management as its employee. 10 In order to prove issue no.1, the workman filed his evidence by way of affidavit Ex.WW1/A and relied his evidence on documents i.e. Ex.WW1/1 is letter of intent for association as SupervisorMaintenance & Engineering in favour of the workman issued by the management, Ex.WW1/2 is copy of joining report of the workman (objected to on the mode of proof) and Ex.WW1/3 is copy of legal demand notice dt. 12.05.07. 11 The workman was crossexamined by Ld.AR for management on this issue and during the crossexamination the workman admitted that M/s. Unisol Infrastructure P. Ltd. having its office at B21, 2nd Floor, Sector58, Noida, Gautam Budh Nagar, U.P. was engaged by the management to provide expert services for maintaining electrical equipments and D.G. Sets and there were around 18 employees of the said agency I.D.No. 58/08 (old), 799/14 (new) 6/11 were/are performing their job in the premises of the management as consultant on the recommendations of M/s. Unisol. This witness further deposed that no other letter was issued to him except Ex.WW1/1 and also admitted that this letter bears his signatures at point A. This witness further admitted that he was not getting PF and ESI benefit and other legal facilities as provided to regular work force of the management and also admitted that TDS was deducted from his monthly retainership fee and apart from the retainership fee he was not getting any other facility afforded by the other work force of the management. This witness further deposed that he does not have any other proof except Ex.WW1/1 which is on record to show that he was an employee of the management. This witness denied to the suggestion that since he was never employed by the management as he did not have any document to show that he was an employee of the management. This witness further admitted that his job is to supervise the persons employed through M/s. Unisol Infrastructure and further denied to suggestion that his agreement was terminated in accordance with clause B of Ex.WW1/1. 12 This is the relevant evidence concerning this issue. I have perused documents Ex.WW1/1, Ex.WW1/2 and Ex.WW1/3. As far as Ex.WW1/1 is concerned, on perusal of same it is revealed that this letter is an agreement between the workman and the management by which the workman was engaged with the management as a retainer. Therefore, the court is of the opinion that the workman was working with the management as a retainer only and hence, this court held that document Ex.WW1/1 is not helping the workman in establishing employer and employee relationship between him and the management. As far as Ex.WW1/2 is concerned, on perusal of same it is revealed that this is a photocopy and original thereof has not been produced by the workman, hence this document cannot be read in evidence. No other documentary has I.D.No. 58/08 (old), 799/14 (new) 7/11 been filed by the workman by which it can be proved that the workman was an employee of the management.
13 Further, the workman during his cross examination has admitted that no other letter was issued to him except Ex.WW1/1 and he was not getting PF and ESI benefit and other legal facilities as provided to regular work force of the management. The workman also admitted that TDS was deducted from his monthly retainership fee and apart from the retainership fee he was not getting any other facility afforded by the other work force of the management. The workman also admitted that his job is to supervise the persons employed through M/s. Unisol Infrastructure. The aforesaid crossexamination of the workman itself shows that the workman was not the employee of the management, rather he was working with the management as a retainer. 14 Apart from the mere affidavit of workman which is Ex.WW1/A, there is no other evidence on court file to prove the employer and employee relationship between the workman and the management. The workman has not filed any application thereby seeking directions to the management to produce records in respect of his employment nor he examined any coworker who may depose before the court that the workman was an employee of the management. Onus to prove employer and employee relationship was upon the workman but the workman has not discharged the same. 15 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) I.D.No. 58/08 (old), 799/14 (new) 8/11 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 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."
16 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."
17 It was further held in the judgment titled Automobile Association Upper India I.D.No. 58/08 (old), 799/14 (new) 9/11
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."
18 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 the parties."
19 In view of the law points cited herein above, testimony of the workman and also in view of the fact that the workman has not led any cogent evidence to establish employer and employee relationship between him and the management, therefore, this court held that the workman has failed to prove that there was any employee and employer relationship between him and the management. Issue no.1 is decided against the workman.
ISSUE NO.2 20 Onus of this issue was upon the workman and the workman was required to I.D.No. 58/08 (old), 799/14 (new) 10/11
prove that his services have been terminated by the management illegally and unjustifiably. Since this court has already held herein above while disposing of issue no.1 that the workman has failed to establish employer and employee relationship between him and the management, this court held that the services of the workman have not been terminated by the management illegally. Issue no.2 is decided against the workman.
RELIEF (ISSUE NO.3) 21 In view of the findings of the court on issue no.1 and 2, this court held that the workman is not entitled to any relief against the management. 22 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 08.12.2014 PRESIDING OFFICER:
LABOUR COURTIX/
EAST DISTT./KARKARDOOMA COURTS:
DELHI
I.D.No. 58/08 (old), 799/14 (new) 11/11