Delhi District Court
Ghanshyam vs Vishavakarma Hydraulics Machines ... on 19 March, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-004197-2014
Ref. No. F.3(547)/13/Ref./WD/Lab./689 Dated 24.03.2014
LIR No. 5791/2016 (Old No. 103/2014)
Sh. Ghanshyam S/o Sh. Ram Nayan,
R/o House No. 360, J.J. Colony,
Wazirpur, Delhi-110052.
C/o Bhartiya Engineering & General Mazdoor Union (Regd.),
Bharat Mill Charkhi Gate,
Plot No. 01, Near D-Block,
Karampura, New Delhi-110015. .....Workman
VERSUS
M/s. Vishavakarma Hydraulics Machines (India)
29/15-16, Gali No. 06,
Anand Parvat, New Delhi-110005. .....Management
Date of Institution of the case : 26.03.2014
Date on which Award is passed : 19.03.2024
Award:
1.By this award, I will dispose off the reference dated 24.03.2014 received by this Court from the office of Deputy Labour Commissioner, District West, Govt. of NCT of Delhi U/s 10(1)C & 12(5) of Industrial Disputes Act, 1947 vide order no. F.3(547)/13/Ref./WD/Lab./689 Dated 24.03.2014, whereby, the following issues have been referred to this Court for adjudication:-
LIR No. 5791/2016Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 1 of 22 "Whether employee-employer relationship exists between Sh. Ghanshyam S/o Sh. Ram Nayan and the management and if yes; whether the services of Sh. Ghanshyam S/o Sh. Ram Nayan have been ter- minated illegally and/or unjustifiably by the man- agement; if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The aforesaid reference was received by this Court on 26.03.2014 and statement of claim was thereafter filed by the workman on 17.05.2014 alleging inter alia that the workman had been working with the management at the post of Turner w.e.f. 11.05.2003 until 03.06.2012, on which date, his services were illegally terminated by the management after forcibly obtaining his signatures on a resignation letter and full and final settlement letter. It is further his case that his last drawn wages were Rs. 7,000/- per month and despite satisfactory performance of the workman, he was not given the statutory benefits such as annual and casual leave, festival holidays, appointment letter, attendance card, wages slip and bonus etc.
3. Circumstances leading to termination of his services, according to him, are that he had availed leave for the period 09.05.2012 to 02.06.2012 from the Manager of the management namely Sh. Devender Kumar to visit his native village, however, was not allowed to re-join his duty on 03.06.2012, after completion of the leave period. It is further his case that he had lodged a police complaint against the management with SHO, PS Anand Parvat that the manager of the management had obtained his signatures on the resignation letter and full and final LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 2 of 22 settlement letter. Since, according to him, the management has neither produced any record of its employees before the Labour Inspector nor has the management reinstated him into service with full back wages and consequential benefits, despite service of demand notice dated 29.06.2012 by the workman upon the management and despite failure of conciliation proceedings before the Conciliation Officer due to non-participation of the management in the same, the workman was constrained to file the present statement of claim. While alleging himself to be unemployed, since 03.06.2012, the workman has prayed for his reinstatement with full back wages and other statutory benefits.
4. Written statement to the aforesaid statement of claim was thereafter filed on behalf of the management on 17.09.2014, wherein, the management has denied the existence of employer- employee relationship between the parties while alleging that the workman had never worked with the management even for a single day. It has further been alleged by the management that the claim of the workman is also not maintainable in view of the return of earlier reference of the same Industrial Dispute by Ld. Predecessor of this Court vide award dated 12.08.2013 and the only option available to the workman was to get the aforesaid proceedings revived and not to raise a fresh Industrial Dispute. Management has thus prayed for dismissal of the present claim of the workman on the ground that the management has never admitted the claimant to be its workman before any authority and the offer to make a payment of Rs. 10,000/- to the claimant, LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 3 of 22 during the pendency of his complaint with Sh. P.P. Sikri, was given by the management to prevent itself from further harassment.
5. A rejoinder to the aforesaid written statement was thereafter filed on behalf of the workman on 16.10.2014, wherein, the workman has once again reiterated the averments made by him in his statement of claim and has denied the contrary averments made by the management in its written statement. It has further been alleged by the workman that so far as the earlier reference of Industrial Dispute, raised by him, to the Labour Court is concerned, he has neither received the reference nor any summon or order of the Labour Court due to the mistake on the part of the Labour Department.
6. Thereafter, on the basis of pleadings of parties, following issues were settled by Ld. Predecessor of this Court vide order dated 16.10.2014:
(i) Whether present reference is not maintainable in view of preliminary objections no. 2 and 3 in the WS of management? OPW.
(ii) In terms of reference.
7. Workman has thereafter examined as many as 03 witnesses in support of his case including himself. He has examined himself as WW-1 and has tendered his evidence by way of affidavit Ex.WW1/A along with following documents:-LIR No. 5791/2016
Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 4 of 22
(i) Ex.WW1/1: Complaint dated 06.06.2012 to SHO, PS Anand Parvat.
(ii) Ex.WW1/2: Complaint dated 07.06.2012 to Assistant Labour Commissioner.
(iii)Ex.WW1/3: Report dated 10.09.2012 of Labour Inspector.
(iv)Ex.WW1/4: Complaint dated 06.07.2012 to Assistant Labour Commissioner.
(v) Ex.WW1/5: Complaint dated 08.05.2012 to Joint Labour Commissioner.
(vi)Ex.WW1/6: Report dated 10.09.2012 of Labour Inspector.
(vii)Ex.WW1/7: Copy of demand notice dated 29.06.2012.
(viii)Ex.WW1/8: Speed post receipt dated 29.06.2012.
(ix)Ex.WW1/9: Report dated 28.08.2012 of Labour Inspector.
(x)Mark-A: Copy of proceedings of Labour Inspector.
8. Sh. Surender Pandey s/o Sh. Badri Nath Pandey, one of the alleged co-workers of the claimant, has been examined by the workman as WW-2 and he has tendered his evidence by way of affidavit Ex.WW2/A along with the copy of his ESI card Ex.WW2/1 and the detailed particulars of his ESI card Ex.WW2/2.
9. Dr. Vakul Kumar Goel, the then Labour Inspector, who had given the reports Ex.WW1/6 and Ex.WW1/9 pursuant to the complaint of the workman, has been examined by the workman as WW-3 and he has proved the aforesaid reports.
10. All the three witnesses examined on behalf of the workman were duly cross-examined by Ld. AR for management and thereafter, on a separate statement of Ld. AR for workman, LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 5 of 22 workman's evidence was closed vide order dated 04.07.2016.
11. Management has thereafter examined Sh. Devender Kumar, working at the post of Manager with the management, as MW-1 i.e. as the sole witness in support of the case of management, who has tendered his evidence by way of affidavit Ex.MW1/A along with the award dated 12.08.2013 Ex.MW1/1 (colly) of Ld. Predecessor of this Court. He was duly cross-examined by Ld. AR for workman and was discharged. Thereafter, on a statement of Manager of the management, management's evidence was closed vide order dated 14.09.2022 and the matter was adjourned for final arguments, however, in the meantime, on an application of the management, seeking permission to lead additional evidence, management was directed to lead additional evidence vide order dated 07.06.2023.
12. Additional evidence by way of affidavit was tendered by MW-1 as Ex.MW1/A1 along with the copy of wage register for the period April, 2009 to July, 2012 Ex.MW1/2 (colly). After cross-examination of MW-1 on the aforesaid affidavit, on a separate statement of Ld. AR for management, management's evidence was closed vide order dated 02.11.2023.
13. Final arguments were thereafter heard on behalf of both the parties. Besides, written arguments have also been filed on behalf of the management on 25.01.2024.
14. It is submitted by Ld. AR for workman that the workman has been able to prove his case by way of his uncontroverted LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 6 of 22 testimony in the form of affidavit Ex.WW1/A, which is not only corroborated by the documents Ex.WW1/1 to Ex.WW1/9 but also by the oral testimonies of WW-2 and WW-3 respectively. He submits that the workman has taken a categorical plea in his statement of claim as well as evidence by way of affidavit that he had joined the management at the post of Turner w.e.f. 11.05.2003 and worked to the utmost satisfaction of the management until 03.06.2012, on which date, his services were illegally terminated by the management.
15. He submits that the workman has also examined his co- worker namely Surender Kumar Pandey, who had admittedly been working with the management and had deposed that during his employment with the management, the workman was also employed with the management. Besides, according to him, the workman has examined the concerned Labour Inspector, who had visited the factory premises of the management on 23.05.2012, as WW-3 to prove his report to the effect that during his visit to the factory premises of the management, a number of workmen were found working with the management, whose names were not shown in the record maintained by the management.
16. Moreover, according to him, the management has failed to produce the complete record of attendance and payment of wages to the employees working with the management for which an adverse inference needs to be drawn against the management. In view of the aforesaid facts and circumstances, according to him, LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 7 of 22 the workman has been able to prove, not only, the existence of employer-employee relationship between the parties, but also, his illegal termination by the management w.e.f. 03.06.2012 by direct as well as circumstantial evidence. Ld. AR for workman has thus prayed for passing of an award in favour of the workman in terms of prayers made in the statement of claim.
17. On the other hand, it is submitted on behalf of the management that despite the onus to prove the existence of employer-employee relationship between the parties being upon the workman, the workman has failed to lead any cogent evidence either direct or circumstantial to prove that he was ever employed with the management. Admittedly, according to Ld. AR for management, the workman has not filed any documentary proof to show that he was ever employed with the management. He further submits that the whole case of the workman revolves around the fact that since he was offered a sum of Rs. 10,000/- before Conciliation Officer/Labour Inspector, he should be deemed to be an employee of the management, because, had there been no relationship of employer-employee between the parties, management would not have offered the aforesaid amount to the workman before the Conciliation Officer/Labour Inspector. However, the aforesaid fact by itself, according to him, is not sufficient to hold the existence of employer-employee relationship between the parties, particularly, in view of the fact that the management has specifically denied the existence of any such relationship before the Labour Inspector/Conciliation LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 8 of 22 Officer.
18. The aforesaid fact, which is apparent from the document Ex. WW-1/9, according to him, has also been admitted by WW-3 during his cross-examination dated 04.07.2016. Besides, according to him, MW-1 during his cross-examination dated 18.12.2016 has categorically deposed that the offer of Rs. 10,000/- to the workman before Labour Officer was without prejudice to the plea of management regarding non-existence of employer-employee relationship between the parties and was made merely to save the management from the harassment.
19. So far as the evidence of WW-2 is concerned, it is submitted by Ld. AR for management that his testimony does not inspire confidence due to contradictory statements made by him during his cross-examination vis-a-vis his deposition in his evidence by way of affidavit. Moreover, according to Ld. AR for management, the plea of WW-1, regarding alleged obtaining of his signatures by the management forcibly on the resignation letter and full and final settlement, is fraught with contradictions.
20. Under the aforesaid circumstances, according to him, the workman has failed to lead any evidence, either direct or circumstantial, to prove the existence of employer-employee relationship between the parties, whereas, the management has produced the wage register for the period April, 2009 to July, 2012 maintained by it, wherein, the name of claimant does not find mention as an employee of the management.
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21. So far as the report Ex.WW1/6, of the Labour Inspector, is concerned, it is submitted by Ld. AR of management that in the absence of any provision under the Industrial Disputes Act for inspection of the establishment by the Labour Inspector, the aforesaid report has been given by the Labour Inspector without any jurisdiction and hence cannot be considered by this Court being a nullity. Even otherwise, according to him, the aforesaid report appears to have been given by the Labour Inspector pursuant to the complaint dated 23.05.2012 of Bhartiya Engineering and General Mazdoor Union purportedly on behalf of employees of the management, however, since the workman during his cross-examination has admitted that none of the employees of the management other than him were the members of the aforesaid union, even the union was not authorized to make any such complaint.
22. He further submits that a bare perusal of the aforesaid report even shows that the name of the claimant has not been mentioned therein, in the list of employees, who were allegedly found working by the Labour Inspector during his visit on 23.05.2012. He has thus prayed for dismissal of the present claim of the workman while relying upon the following judgments:-
(i) Bhogpur Cooperative Sugar Mills Limited Vs. Harmesh Kumar (2006) 13 SCC 28.
(ii) Range Forest Officer Vs. ST Hadimani (2002) 3 SCC 25.
(iii) M/s. Essen Deinki Vs. Rajiv Kumar (2002) 8 SC
400. LIR No. 5791/2016
Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 10 of 22
(iv) Manager RBI, Bangalore Vs. S. Mani & Ors.
(2005) 5 SCC 100.
(v) Surendra Nagar District Panchayat Vs. Jethabhai Pitamber Bhai (2005) 8 SCC 450.
(vi) Automobile Association Upper India Vs. PO Labour Court-II and Anr. 2006 SCC Online Delhi 303.
23. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record in the light of judgments relied upon by Ld. AR for management. My issue-wise findings on the issues settled by Ld. Predecessor of this Court are as follows:-
Issue No.(i) Whether present reference is not maintainable in view of preliminary objections no. 2 and 3 in the WS of management? OPW.
24. In its written statement, management has alleged that the present reference is not maintainable in view of termination of proceedings, in an earlier reference bearing LIR No. 89/2013, arising out of the same dispute, by Ld. Presiding Officer, Labour Court-XI vide award dated 12.08.2013 since the claimant had failed to file any statement of claim before the Labour Court despite repeated opportunities and that no demand notice had been served by the workman upon the management before raising the present dispute.
25. Although, no arguments were addressed by either of the parties on the aforesaid issue, however, since the aforesaid issue has been settled by Ld. Predecessor of this Court vide order dated 16.10.2014, this Court is required to adjudicate the same. It is LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 11 of 22 significant to note in this regard that the management has tendered a copy of award dated 12.08.2013 passed by Ld. POLC- XI Karkardooma Courts, in LIR No. 89/2013 pursuant to a Reference Order no. F.3(547)/12/Ref./WD/Lab./604 dated 03.04.2013 received from Deputy Labour Commissioner (West), Labour Department, Govt. of NCT of Delhi which as per the certificate annexed therewith was duly published on 23.01.2014.
26. A bare perusal of the aforesaid award shows that the Ld. Labour Court has terminated the proceedings in the aforesaid reference due to non-appearance of the workman and non-filing of the statement of claim and had returned the reference unanswered leaving it to the appropriate Govt to send the reference again, in case, the party raising the dispute approaches the appropriate Govt.. Thereafter, it appears that the workman has approached the appropriate Govt. for sending a fresh reference which has been sent to this Court vide reference order dated 24.03.2014.
27. Under the aforesaid circumstances, in my considered opinion, the management cannot be allowed to raise any objection to the jurisdiction of this Court or for that matter of the Appropriate Govt. to make the fresh reference dated 24.03.2014 to this Court in view of award dated 12.08.2013 in LIR No. 89/2013.
28. The management has also failed to point-out any provision requiring the service of fresh demand notice by the workman LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 12 of 22 upon the management before seeking the fresh reference of industrial dispute raised by him on an earlier occasion which could not be adjudicated due to non-appearance and non-filing of the statement of claim by him.
29. Issue no. (i) is thus decided against the management.
Issue No.(ii): As per terms of reference i.e. "Whether employee-employer relationship exists between Sh. Ghanshyam S/o Sh. Ram Nayan and the management and if yes; whether the services of Sh. Ghanshyam S/o Sh. Ram Nayan have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
30. As has already been observed hereinabove, though, the workman has alleged that his services were terminated by the management w.e.f. 03.06.2012, after he had joined the services of the management w.e.f. 11.05.2003 as a Turner, the management has taken a plea that the claimant was never employed with the management at any point of time. Under the aforesaid circumstances, in my considered opinion, it was incumbent upon the claimant to prove the existence of employer-employee relationship between the parties since in view of the authoritative pronouncements of Hon'ble Supreme Court as well as Hon'ble Delhi High Court, relied upon by Ld. AR for management, onus to prove the existence of employer-employee relationship between the parties in an industrial dispute is always upon the workman.
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31. On a careful reading of the aforesaid judgments, it is further apparent that the workman could have discharged the aforesaid onus either by leading the direct evidence such as existence and production of appointment letter, written agreement/identity card etc. or, else, by circumstantial evidence in the nature of attendance register, salary register, leave records, deposit of PF and ESI contributions or by summoning any co-worker. Moreover, the same can either have been produced or proved by the workman or he could have called upon the management or the competent authorities to produce the same by moving appropriate applications in this regard or else by examining any co-worker in support of his aforesaid plea. It is further well- settled that the self-serving statement of a workman even on an affidavit without any documentary or circumstantial evidence shall not be sufficient proof of existence of employer and employee relationship between the parties.
32. In the case in hand, the workman has deposed that he had been working with the management since 11.05.2003 at the post of Turner against last drawn wages of Rs. 7,000/- per month with full dedication and integrity, however, the management has not provided the statutory benefits such as annual and casual leave, appointment letter, attendance card, bonus etc. to the workman. He has further deposed that annoyed by the oral demands of the workman for the aforesaid benefits, the management has illegally terminated his services w.e.f. 03.06.2012 after threatening him and after obtaining his signatures on the resignation letter and LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 14 of 22 full and final settlement.
33. A perusal of the record revels that the workman has failed to produce any document in support of his claim that he had worked with the management at any point of time during 11.05.2003 to 03.06.2012. He has also failed to produce any notice having been served by him upon the management prior to his alleged termination demanding the alleged statutory benefits. The complaint purportedly made by the workman, to the SHO concerned, regarding the alleged obtaining of signatures of the workman by the management on resignation letter as well as on the letter of full and final settlement of his account, in my considered opinion, cannot have the effect of proof of existence of employer-employee relationship between the parties nor his subsequent complaints to the Labour Department can have the aforesaid effect.
34. In fact, as has already been point-out by Ld. AR for management, the workman, during his cross-examination dated 20.02.2015, had categorically admitted that he has no documentary proof to show his employment with the management. He has further admitted that the management, before the Conciliation Officer as well as the Labour Inspector, has maintained its stand that there existed no relationship of employer-employee between the parties and had offered a sum of Rs. 10,000/- to the claimant for settling the matter while keeping its right to take the aforesaid defence open.
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35. It is further significant to note that the workman has examined one Surender Pandey s/o Sh. Badri Nath Pandey, another employee of the management, as WW-2 and he, in his evidence by way of affidavit, has deposed that he had been working with the management since January, 2003 at the post of Turner, against last drawn wages of Rs. 8,000/- per month, until April 2013 when he was removed from his services. He has further deposed that the claimant herein had been recruited by the management in the month of May, 2003 and, during continuation of his employment as WW-2, was terminated from his services in the month of June, 2012. As a proof of his employment with the management, WW-2 has placed on record a copy of his ESI card and detailed particulars thereof as Ex.WW2/1 and Ex.WW2/2 respectively.
36. WW-2 was duly cross-examined by the AR of management. The length of service of WW-2 with the management was disputed by the management during his cross-examination, in as much as, it was suggested to him was he had started working with the management since June, 2008 and had left the services of the management in the year 2010. In fact, the management has been able to substantiate its aforesaid plea by cross-examination of WW-2, in as much as, WW-2 had admitted that the ESI card in his name was issued by the management in the month of January, 2008 and as per his deposition in the affidavit he has got the same closed in the year 2010. He had admitted that he had no document to prove his employment with the management prior to LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 16 of 22 January, 2008 and after December, 2010. He has further admitted that he also does not have any documentary evidence to show that the claimant had ever worked with the management.
37. During his cross-examination, WW-2 was found taking contradictory stands, not only, regarding the closure of his ESI card, but also, regarding the alleged date of his removal/leaving the services of the management. Though, in his evidence by way of affidavit, he had deposed that he was removed from the service by the management in the year 2013, however, during his cross-examination, he has admitted that he had tendered the resignation letter after settling the accounts with the management in December, 2010 and after receipt of Rs. 50,000/- upon full and final settlement of his account.
38. In view of the aforesaid material contradictions in the testimony of WW-2, in my considered opinion, he is not a reliable witness and hence, his testimony cannot form the basis of any finding to the effect that there existed any relationship of employer and employee between the management and the workman.
39. Ld. AR for workman has heavily relied upon the inspection report of the Labour Inspector Ex.WW1/6 to the effect that upon inspection by him of the factory premises of the management on 23.05.2012, he found 16 workmen working with the management, out of whom, names of seven workmen were not reflected in the record of the management. The labour inspector LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 17 of 22 has been examined by the workman as WW-3 to prove the aforesaid report, in support of his plea that since the management was not maintaining proper record of its employees, the Court cannot rely upon the wages register Ex.MW1/2 (colly) for the period April, 2009 to July, 2012 produced by MW-1 in his additional evidence, more so, when the management has deliberately not produced the complete record of its employees.
40. He submits that the aforesaid record Ex.MW1/2 (colly) has been forged and fabricated by the management after visit of Labour Inspector on 23.05.2012. Under the aforesaid circumstances, according to him, there is sufficient circumstantial evidence in the form of testimony of WW-1 and WW-2 and an adverse inference which needs to be drawn against the management for non-production of the complete record of its employees, either before the Labour Inspector or before this Court, that if produced, the same would have proved the plea of workman that he had been working with the management w.e.f. 11.05.2003 until 03.06.2012 as an employee of the management.
41. The aforesaid plea of Ld. AR for workman is sought to be countered by Ld. AR for management by submitting that in the absence of reference in the aforesaid report to any provision of law, under which, the inspection dated 23.05.2012 was conducted by the Labour Inspector at the premises of the management and in the absence of any provision under the Industrial Disputes Act, 1947 authorizing the Labour Inspector to conduct the aforesaid inspection, the inspection report LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 18 of 22 Ex.WW1/6 is a nullity and hence cannot be considered by this Court. Moreover, according to Ld. AR for management, there are no pleadings, in the statement of claim filed by the workman, to the effect that any such inspection was ever carried out by the labour inspector or that he had given any such report, the aforesaid report cannot be considered by this Court being beyond pleadings.
42. I do not find any force in the submission made on behalf of the management that in the absence of reference to any provision of law, under which, the inspection dated 23.05.2012 was conducted by the Labour Inspector at the premises of the management and in the absence of any provision under the Industrial Disputes Act, 1947 authorizing the Labour Inspector to conduct the aforesaid inspection, the inspection report Ex.WW1/6 is a nullity and hence cannot be considered by this Court. I also do not find any force in the submission of Ld. AR for management that in the absence of any pleadings by the workman in his statement of claim either regarding inspection dated 23.05.2012 or regarding the report Ex. WW-1/6, the aforesaid report cannot be considered by this Court being beyond pleadings.
43. In fact, if the aforesaid plea of the management regarding inadmissibility of the report of the Labour Inspector Ex.WW1/6, in evidence on behalf of the workman, being beyond pleadings is sustained, by the same logic, the record produced by the management i.e. Ex.MW1/2 (colly) needs to be left out of LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 19 of 22 consideration. In my considered opinion, as per the applicable rules of pleadings, a party is merely required to plead relevant facts in its pleadings and evidence required to prove the facts cannot form part of the pleadings. Thus, once it is pleaded by the workman in his statement of claim that he had been working with the management w.e.f. 11.05.2003 till 03.06.2012, he can rely upon any document which goes on to prove the aforesaid fact, provided the same is filed by the workman at an appropriate stage and copy thereof is supplied to the opposite party. Thus, in my considered opinion, the document Ex.WW1/6 cannot be left out of consideration by this court on the ground that the same is beyond pleadings.
44. Moreover, merely because the Labour Inspector, in his report Ex.WW1/6, has failed to mention the provision of law under which he had inspected the factory of the management on 23.05.2012, the same by itself shall not have the effect of rendering the aforesaid report a nullity, more so, in view of the fact that there has been no cross-examination of the aforesaid Labour Inspector, on the part of management, regarding his power to inspect the factory premises of the management.
45. The next question which arises for consideration of this Court is whether the report Ex. WW1/6 is sufficient to prove the existence of employer-employee relationship between the parties. A bare perusal of the aforesaid report shows that during his visit to the factory of the management, on 23.05.2012, the labour inspector had found 16 employees working in the factory of the LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 20 of 22 management, out of which, the names of as many as 7 employees were not found mentioned in the record, maintained by the management, in respect of its employees.
46. On the basis of aforesaid report, it is sought to be contended by Ld. AR for workman that the aforesaid report goes on to prove the plea of the workman that no statutory benefits were being provided by the management to the workman and that the record produced by the management in the form of document Ex. MW1/2 (Colly) is forged and fabricated and cannot be relied upon by the Court as a proof of the fact that workman was not employed with the management. Though, at first blush, the aforesaid plea of Ld. AR for workman seems plausible, however, in my considered opinion, mere omission on the part of management in mentioning the names of all its employees in its record, in the absence of any other document filed on behalf of the workman indicating his employment with the management, cannot have the effect of proof of existence of employer- employee relationship between the parties.
47. It is significant to note that the workman has neither produced any record nor has he sought any direction to the management to produce the complete record of its employees at any point of time and hence, no adverse inference can be drawn against the management on account of non production of complete record of its employees by the management.
48. In view of the aforesaid discussion, in my considered LIR No. 5791/2016 Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 21 of 22 opinion, the workman has failed to prove the existence of any employee-employer relationship between him and the management. Since the workman has failed to prove the existence of any employer-employee relationship between the parties, there is no question of illegal termination of his services by the management.
49. Since, the workman has failed to prove the existence of any employer-employee relationship between the parties and illegal termination of his services by the management w.e.f. 03.06.2012, he is not entitled to any relief.
50. The present claim of the workman is thus dismissed and the reference dated 24.03.2014 is answered in negative, in the following terms:
"Sh. Ghanshyam S/o Sh. Ram Nayan has failed to prove that employee-employer relationship existed between him and the management and/or that his services were terminated by the management either illegally or unjustifiably and hence, he is not entitled to any relief".
51. Ordered accordingly.
52. Requisite number of copies of this award be sent to the competent authority for publication as per rules. Announced in the open Court on this 19th day of March, 2024.
This award consists of 22 number of signed pages. ARUN Digitally signed by
ARUN KUMAR GARG
KUMAR Date: 2024.03.20
GARG 14:26:50 +05'30'
(ARUN KUMAR GARG)
Presiding Officer Labour Court-III
Rouse Avenue Court, New Delhi
LIR No. 5791/2016
Ghanshyam Vs. M/s. Vishavakarma Hydraulics Machines India Judgment dated 19.03.2024 Page 22 of 22