Delhi District Court
Sh. Kishan Vishwakarma vs M/S Gulshan Engg. Works on 7 September, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL,
PILOT COURT / POLCXVII, ROOM NO. 514:
DWARKA COURTS: NEW DELHI
LIR No. 1033/2018
Sh. Kishan Vishwakarma
& 6 Others as per Annexure 'A',
C/o Sh. Suresh Kumar Singh, Adv.
Chamber No. B61, Baba Gurucharan Singh Block,
Tis Hazari Courts, Delhi54
..............Workman
Versus
M/s Gulshan Engg. Works,
Plot No. 1, Gali No. 1, Phase1,
Inderlok, Shahzadabad, Delhi35 ..........Management
DATE OF INSTITUTION : 09.07.2003
DATE ON WHICH AWARD RESERVED : 28.08.2018
DATE ON WHICH AWARD PASSED : 07.09.2018
A W A R D :
1. This reference was sent by the Government of NCT of Delhi
vide Order No. F.24 (4705)/2002Lab. 798802 Dated 31.03.2003,
with the following terms :
"Whether the services of Sh. Kishan Vishwakarma & 6
Others as per Annexure 'A', C/o Sh. Suresh Kumar Singh, Adv.
Chamber No. B61, Baba Gurucharan Singh Block, Tis Hazari
LIR No. 1033/2018 1/18
Courts, Delhi54 have been terminated illegally and / or
unjustifiably by the management and if so, to what sum of money
as monetary relief along with consequential benefit in terms of
existing laws/ Government notification and to what other relief are
they entitled and what directions are necessary in this respect?"
2. Vide order dated 20.04.2018 passed in WPC No. 605/2001,
the Hon'ble High Court of Delhi, has remanded back the matter for
decision qua claimants namely Sh. Krishan Vishwakarma, Sugriv
Yadav and Jagdish Paswan with following observations:
12. ...After going through the entire Award, I find that the
Labour Court had failed to render any findings in the impugned
Award in respect of Petitioner no. 1. Even no issue was framed in
respect of the said petitioner. However, in the written statement
filed by the Management, it was stated that petitioner no. 1 Kishan
Vishwakarma had settled his full and final account on 12.04.2002
out of his own free will for a sum of Rs. 13,110/. It was also
submitted in the written statement that the said workman was
working as Helper since 01.11.1998 and his last drawn wages was
2,850/ per month. Though the said submissions were denied by
petitioner no. 1 in the replication filed before the Labour Court.
This Court has failed to understand as to why the case of petitioner
No. 1 Kishan Vishwakarma was not considered or dealt with by the
LIR No. 1033/2018 2/18
Labour Court, particularly, in view of the facts that he had denied
each and every submissions made by the Management in its written
statement and also reiterated his claim raised in the statement of
claim by filing the replication; even, he had filed his affidavit in
evidence which was taken on record by the Laboiur Court and he
was duly crossexamined by the management; the Labour Court in
the impugned Award has also dealt with the evidence of petitioner
No. 1, but still there is no finding rendered by the Labour Court in
respect of the said petitioner. It is an error committed by the
Labour Court and the matter requires to be remanded back to the
Labour Court to consider the case and render the findings on the
basis of pleadings, documents proved and evidence led, as per law,
in terms of reference, so far as the case and dispute of petitioner
no. 1 is concerned.
13. ...As far as Sugriv Yadav (Petitioner no. 2) is concerned, it
has been held by the Labour Court, while deciding issue No. 2 that
the Management has failed to prove that Sugriv Yadav had taken
his full and final dues towards all his claims and accordingly
decided the issues in favour of petitioner No. 2. However, taking
into consideration that, since the Management had proved that it
had closed its establishment w.e.f. 10.04.2002, petitioner No. 2 was
held to be entitled to receive a lump sum of Rs. 25,000/.
14. ...It is a fact, evident from the record that the Labour Court
LIR No. 1033/2018 3/18
has not given any cogent basis or reasoning while quantifying the
amount of Rs. 25,000/ as compensation to petitioner No. 2. The
matter requires factual appreciation and disposition. Hence, I deem
it appropriate to remand back the matter to the Labour Court to
reconsider the case regarding payment of lumpsum compensation
of petitioner no. 2 and take into consideration the facts and the law
in this regard, giving cogent reasoning and the basis thereof.
15. ...Learned counsel for the petitioners submitted that the
findings and the conclusion of the Labour Court that petitioner No.
3 could not prove the relationship of employee and employer
between him and the respondentManagement was against the law
and the facts proved on record. The Labour Court ought to have taken into consideration and drawn an inference against the Management in view of their failure to produce the documents, including record of attendance, wage register, etc. It is also submitted that the Management intentionally did not produce the said documents on the false and fictitious plea of missing the record. This Court is not inclined to make any observations, in the interest of justice, regarding the above submissions made by the learned counsel for the petitioners, so far as petitioner no. 3 is concerned. However, I deem it appropriate to remand back the matter to the Labour Court to also reconsider the case of petitioner No. 3, in view of the evidence on the record and the law in this LIR No. 1033/2018 4/18 regard.
3. There were seven workers whose names were mentioned in the reference but only five namely Kishan Vishwakarma, Jagdish Paswan, Vishwakarma Yadav and Dalip Jha filed statement of claim. But only three claimants namely Krishan Vishwakarma, Sugriv Yadav and Jagdish Paswan had filed writ petition in the Hon'ble High Court of Delhi against impugned award dated 14.01.2011.
4. Claimants' case is that they were workings with the management with following details: S. No. Name Post Date of Monthly Date of Joining Salary Termination 1 Kishan Fitter 15.03.95 2500/ 05.05.2002 Vishwakarma 2 Sugriv Press 15.03.95 2000/ 05.05.2002 Man 3 Jagdish Do 15.03.95 2000/ 05.05.2002 Paswan The management did not use to provide them legal facilities like minimum wages, ESI, PF and earned leave etc. and when he demanded those facilities persistently, it got annoyed and terminated their service on 05.05.2002 without giving any notice or tendering notice pay and retrenchment compensation and by withholding earned wages for the month of March, April and May LIR No. 1033/2018 5/18 2002. There was never any allegation of misconduct and hence, there was no chance of chargesheet and domestic inquiry. The management had adopted anti labour policy in terminating their service and in this way, it violated the provisions of section 25FG of ID Act 1947. The labour inspector had visited the premises of the management on their complaint to make it understand to reinstate them on the same post and for payment of earned wages of three months but the management refused. It had obtained their signatures on blank papers and vouchers forcibly. Demand notice dated 13.05.2002 went unreplied. They are jobless since termination of service.
5. Written statement is to the effect that claimants Krishan Vishwakarma and Sugriv Yadav had started working with it as helper since 01.11.1998 at the last drawn salary of Rs. 2850/ and Rs. 2440/ per month. But they settled their account fully and finally on 12.04.2002 in Rs. 13110/ and 11223/ respectively. The claimant Jagdish Paswan had never worked with it and hence, there was not relationship of employer and employee. The management closed its business activities completely and permanently w.e.f. 10.04.2002 due to acute financial problem and sold machines to M/s Ravi Industries A275, Okhla Industrial Area, Phase no. II, New Delhi on 16.04.2002. The factum of closure of factory was intimated to Regional Officer ESIC vide letter dated 06.05.2002 LIR No. 1033/2018 6/18 upon which an ESI Inspector visited the establishment and gave report dated 23.01.2003 that the business had been closed. A letter to that effect was sent to Labour Commissioner, 5 Shyamnath Marg, Delhi also. The claimants are also aware of the closure of the business.
6. Following issues were framed on 27.10.2005.
1. Whether there existed any relationship of employer and employee between the workmen Jagdish Paswan and Vishram Yadav? OPW
2. Whether the workmen Sugriv Yadav and Dilip Jha have taken their full and final dues from the management ?
3. Whether the management has closed its establishment w.e.f. 10.04.2002 ?
4. As per terms of reference.
7. In order to substantiate the case, the claimant Sh. Krishan Vishwakarma tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in statement of claim. He relied upon following documents.
1. Ex. WW1/1 is complaint dated 01.05.2002 against management through union to Incharge PP Chanderlok.
2. Ex. WW1/2 is demand notice dated 13.05.2002.
3. Ex. WW1/3 is registered AD.
LIR No. 1033/2018 7/184. Ex. WW1/4 is UPC receipt.
By tendering his affidavit in evidence as Ex. WW2/A, the claimant Sugriv Yadav relied on all the documents upon which reliance has been placed by WW1.
Claimant Jagdish Paswan also relied upon the documents which have been relied upon by WW1 from Ex. WW1/1 to WW 1/4.
8. The management examined its part time accountant Mohd. Irshad as MW1 who deposed that claimants Krishan Vishwakarma and Sugriv Yadav had started working with management as helper since 01.11.1998 at the last drawn salary of Rs. 2850/ and Rs. 2440/ per month. Both took full and final settlement amount of Rs. 13110/ and Rs. 11230/ on 12.04.2002 after executing receipts. The claimant Jagdish Paswan had never worked with the management which closed its business activities completely and permanently w.e.f. 10.04.2002. The attendance and wage register of its employees had been misplaced due to change in residence and hence it immediately lodged complaint in PS Inderlok on 06.07.2005. He relied upon following documents:
1. Ex. MW1/1 is full and final receipt of Rs. 13110/ purporting to be executed by claimant Krishan.
2. Ex. MW1/2 is intimation letter dated 20.09.2002 sent by LIR No. 1033/2018 8/18 management to the Secretary Labour Office about closure of business w.e.f. 10.04.2002.
3. Mark X1 is intimation letter dated 06.05.2002 by management to Regional Officer, ESIC about closure of business by management w.e.f. 10.04.2002.
4. Mark X2 are the remarks by ESI Inspector in inspection book to the effect that the management had closed business w.e.f. 10.04.2002.
5. Mark X3 is receipt dated 16.04.2002 issued by management to M/s Ravi Industries in lieu of sale of two machines.
6. Mark X4 is NCR dated 06.07.2005 registered in PS Inderlok regarding loss of some documents.
7. Mark X5 is information letter by management to the office of ESIC qua Krishan Vishwakarma and Sugriv Yadav for providing ESI facility.
MW2 Ms. Pammi Bhardwaj as official from ESIC placed on record the documents of management including the list of its employees and application for closing the establishment, as Ex. MW2/1.
9. The management relied upon following document also by confronting them WW2.
1. Ex. WW2/M1 is full and final settlement receipt dated 12.04.2002 in respect of Sugriv Yadav.
LIR No. 1033/2018 9/1810. Cases of all the claimants shall be discussed separately.
11. None appeared for management to argue the case.
Sh. Kishan Vishwakarma: Ld. ARW argued that the claimant had started working with the management w.e.f. 15.03.1995 and his service was terminated illegally on 05.05.2002 without notice and without tendering notice pay and retrenchment compensation. He had never taken full and final settlement amount from the management on 12.04.2002 or before or after that day. The receipt of full and final settlement was not put to him in cross examination. There is no hand writing expert report that the receipt is bearing signature of the claimant.
Perusal of para no. 1 of preliminary objection of written statement shows that the plea of the management is that Sh. Kishan Vishwakarma had settled his account fully and finally on 12.04.2002 and an amount of Rs. 13110/ was paid on the same day. A suggestion was given to claimant/ WW1 that he had received Rs. 13110/ in cash from management through voucher the then Mark A (later Ex. MW1/1) dated 12.04.2002 in lieu of full and final payment. He was not asked in crossexamination whether the voucher was bearing his signature or not. The management did not place on record report of any hand writing expert that the said LIR No. 1033/2018 10/18 receipt was bearing claimant's signature. Due to these reasons, the receipt Ex. MW1/1 has gone unproved. This conclusion is further supported by the fact that the management did not place on record any other register etc. in which there may be entry of payment of amount of Rs. 13110/ to the claimant.
12. On length of service, claimant's case is that he had started working w.e.f. 15.03.1995 and worked till 05.05.2002 when his service was illegally terminated. Perusal of written statement and affidavit of evidence of Ex. MW1 shows that management's plea is that he had started working on 01.11.1998. His service was never terminated as it had come to an end due to closure of business w.e.f. 10.04.2002. The issue of closure of business was framed separately by the Labour Court in which it was observed that management had closed its business w.e.f. 10.04.2002. That conclusion has been upheld even by Hon'ble High Court. So, last working day of the claimant is taken as 09.04.2002.
In order to prove the date of joining as 15.03.1995, the claimant is heavily relying upon some letters received from his known persons. One such letter is Ex. WW4/6 but it is not bearing the date on the seal of postal department. It cannot be inferred when the said letter was received by him. The next letter is Ex. WW4/7 and it is dated 15.04.2002. But that letter is also of no help to the claimant because the relationship has been admitted by the LIR No. 1033/2018 11/18 management from 01.11.1998 to 09.04.2002. Next in line is letter Ex. WW4/8 and it is dated 11.08.2000. Again that letter is not establishing the date of his joining the management as 15.03.1995.
On the other hand, there is list of employees appearing on page no. 12 of Ex. MW2/1 (colly). It is pertinent to mention that first page of Ex. MW2/1 is an application which was sent by the management to the Regional Director of ESIC for giving intimation of closure of business. That application was accompanied by 36 pages. Perusal of page no. 12 shows that the name of the claimant is appearing at serial no. 1. That list is dated 01.12.1998. The claimant has himself placed on record ICards Ex. WW4/2 and Ex. WW4/3 issued by ESIC in which date of his joining the management is mentioned as 01.12.1998.
Ld. ARWs argued that adverse inference be drawn against management for not producing the service record of the claimant, is not justiciable because the claimant did not move an application for direction to the management to produce his service record. He did not ask MW1 in crossexamination to produce his service record. For adverse inference, following held by Hon'bel High Court of Delhi in M/s Automobile Assoc. Upper India Vs. P.O. Labour Court II & Anr., 2006 SCC Online Del 456.
14. "Engagement and appointment in service can be established directly by the existence and production of an appointment letter, LIR No. 1033/2018 12/18 a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman."
In view of above citation, adverse inference cannot be drawn against the management. Length of his service is taken from 01.12.1998 to 09.04.2002 i.e. for about 3 ½ years.
13. The claimant deposed that his last drawn salary as Rs. 2,500/ per month. But it is mentioned as Rs. 2,850/ in written statement. Plea of Ld. ARW is that claimant was working as fitter, was a skilled worker and minimum wages of a skilled worker as on 10.04.2002 were Rs. 3091.40/. There is no opposition from the management that the claimant was not a skilled worker and that minimum wages for a skilled worker as on 10.04.2002 were not Rs.
LIR No. 1033/2018 13/183091.40/. Taking into account the length of service and minimum wages, there management is directed to pay him lumpsum compensation of Rs. 1,00,000/ (Rs. One Lakh).
Sugriv Yadav:
14. Ld. ARW argued that the Ld. POLC had granted lumpsum compensation of Rs. 25,000/ to the claimant without mentioning the reasons therefore. He argued that the claimant had worked for about seven years from 15.03.1995 to 05.05.2002 at the last drawn salary of Rs. 2,000/ per month as a PressMan and that job amount for skilled worker and minimum wages for a skilled workers on 10.04.2002 were Rs. 3091.40/.
Except identity card Ex. WW4/4 issued by ESIC, the claimant has not placed on record any document to prove the date of his joining the management. Arguments of ARW for drawing adverse inference against management for not producing claimant's service record is not tenable as discussed in the case of Sh. Kishan Vishwakarma. It is mentioned in Ex. WW4/4 that he had joined the management on 01.12.1998.The management had closed business operations w.e.f. 10.04.2002. So, Length of service comes out from 01.12.1998 to 09.04.2002 i.e. about 3 ½ years.
He was working as a PressMan and nature of his job makes him a skilled worker for whom minimum wages as on 10.04.2002 LIR No. 1033/2018 14/18 were Rs. 3091.40/. Taking into account these factors, the management is directed to pay him lumpsum compensation of Rs. 1,00,000/.
Jagdish Paswan:
15. Ld. ARW argued that adverse inference be against the management for not producing service record of the claimant and consequently it be held that he was employed with the management.
16. Following was held in Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Others Civil Appeal Nos. 135153 of 2002, decided on 05.02.2004:
"47. It is a wellsettled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
Following observations of Hon'ble High Court of Kerala given in N.C. John Vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Others, 1973 Lab. I.C. 398 are also relevant:
"The burden of proof being on the workmen to establish the employeremployee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
The Apex Court concluded in Range Forest Officer Vs. S.T. Hadimani (Supra) that onus was upon the claimant to prove that he LIR No. 1033/2018 15/18 was employed with management and had worked for 240 days in the preceding year of termination his service, in following words: "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 statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."
The Hon'ble High court of Calcutta propounded in Swapan Das Gupta and Others Vs. The First Labour Court of West Bengal and Others, 1976 Lab. I.C. that when a person asserts that he was workman of the company which was denied by the company, it was for him to prove the fact and that it is not for the company to prove that he was not its employee.
It was held that Hon'ble High Court of Delhi in M/s LIR No. 1033/2018 16/18 Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. 2006 LLR 851 that adverse inference can be drawn against the management if it does not produce service record of the management despite the direction by the management. In the case in hand, claimant had not moved any such application. Moreover, proper explanation is there from management for not producing the service record.
17. In order to prove relationship, the claimant is relying upon only one document Ex. WW4/11 i.e. a letter received by him from his known person. But that letter his of no help because it is dated as 24.04.2002 whereas the management had closed business operations w.e.f. 10.04.2002. It has been deposed by MW1 that management had misplaced some documents and that is why it lodged NCR in PP Inderlok on 06.07.2005. Perusal of Mark X4 shows that it was registered on the statement of proprietor Mehroon Nisha on 06.07.2005 to the effect that she had lost some documents while shifting the residence. Moreover, the management did not move any application for direction given to the management to produce his service record. Proper explanation has been furnished by the management for not producing his service record suo motu.
18. In view of above discussion, it is held that claimant Sh. Jagdish Paswan has failed to prove his relationship with the LIR No. 1033/2018 17/18 management.
19. Relief:
1. The management is directed to give lumpsum compensation of Rs. 1,00,000/ to claimant Sh. Kishan Vishwakarma.
2. The management is directed to give lumpsum compensation of Rs. 1,00,000/ to claimant Sh. Sugriv Yadav.
3. The claimant Sh. Jagdish Paswan is not entitled to any relief because he failed to prove relationship with the management.
The Management is directed to pay that amount to claimants within one month from today failing which it shall be liable to pay interest @ 9% per annum from today till realization. Parties to bear their own costs. Award is passed accordingly.
20. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated & announced (UMED SINGH GREWAL) in the open Court on 07.09.2018. PILOT COURT/ POLCXVII DWARKA COURTS, NEW DELHI LIR No. 1033/2018 18/18