Delhi District Court
Through vs (1) M/S Muthoot Finance on 10 September, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 5411/16
Sh. Bijender Pal Singh
S/o late Mahavir Singh
R/o: H.No. RZ32A, Arjan Park,
near Gopal Diary, Najafgarh,
New Delhi 110043
Through
All India General Mazdoor
Trade Union (Regd.)
170, Bal Mukund Khand,
Giri Nagar, Kalkaji,
New Delhi - 110019
....CLAIMANT
VERSUS
(1) M/s Muthoot Finance
Off: WZ88, Gali no. 4,
Behind Ram Mandir,
Sadh Nagar, New Delhi
Through General Manager
(2) M/s Paramount Security Service
Off: Plot No. 13, Sector 10 Market,
Odeon Plaza - 11, 3rd Floor,
Dwarka, New Delhi
....MANAGEMENT
Date of institution of the case: 12.01.2012
Date of passing the Award : 10.09.2018
LIR No: 5411/16 Page 12 of 12
A W A R D
1.This is a reference dated 25.11.2011, u/s 10(1) (C) and 12(5) of the Industrial Disputes Act, 1947, which was sent by Dy. Labour Commissioner on a complaint filed by Claimant against the Management, wherein the following reference was to be answered : "Whether services of Sh. Bijender Pal Singh S/o Late Sh. Mahavir Singh have been illegally/ and or unjustifiably terminated by the Management, and if yes, to what relief is he entitled?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, wherein, it was stated that he was working with the Management since 14.02.2010 as 'Gunman' with his last drawn salary of Rs. 8,500/ per month. Workman was stated to have never afforded any opportunity of complaint of any nature whatsoever to the Management nor he was ever charge sheeted. However, the management had deprived him of statutory benefits such as leave book, salary slips, attendance cards, weekly as well as annual leaves, bonus, overtime, transport allowance, HRA etc. However, when the workman had demanded the aforesaid facilities, then the management had abruptly terminated his services on 01.06.2011 in an illegal and arbitrary manner while withholding the salary for the period from 01.03.2011 to 31.05.2011 which action of the management was in clear LIR No: 5411/16 Page 12 of 12 violation of provisions of Section 25(F) of Industrial Disputes Act. Management no. 1 was stated to be the principal employer of the workman, however, in order to avoid the sword of labour laws, the management no. 2 was introduced as his employer.
Workman had also sent a legal demand notice dated 02.07.2011, however, despite receipt of the same neither it was complied with, nor it was replied by the management. Therefore, the present reference was made and it was prayed that workman was entitled to reinstatement with full back wages and continuity of services.
3. Notice of claim was sent to Management(s) who were duly served with the same and they had also appeared to contest the claim of workman on merits and filed their respective written statements on record.
4. Management no. 1 in its written statement had denied the existence of employer and employee relationship between the parties. Management no. 2, on the other hand had taken a plea regarding lack of punctuality and habitual absenteeism on part of workman, who was stated to have worked with it only for 22 days and not for 240 days as claimed by him.
On merits, all the contents of statement of claim LIR No: 5411/16 Page 12 of 12 unless the same were specifically admitted or essentially or purely constituted the matter of record, were denied by both the managements as wrong and incorrect.
4. On the pleadings of the parties, vide order dated 10.08.2016, ld. Predecessor of this Court was pleased to frame the following issues :
1. Whether there is any employeremployee relationship between workman and management no. 1? O.P.W.
2. Whether the workman has not completed 240 days of continuous service with management no. 2 in the preceding year? O.P.M2.
3. Whether the workman left his job of his own by writing letter dated 06.04.2011? If so, its effect? O.P.M2
4. In terms of reference.
5. Relief.
5. In order to discharge the onus of proving the issues, the workman had appeared in the witness box as his sole witness and filed in evidence, his examination in chief by way of affidavit Ex. WW1/A wherein he had reiterated the factual contents of his statement of claim on solemn affirmation. Besides this, he had also placed on record the following documents :
1. copy of representation made to Asst. Labour LIR No: 5411/16 Page 12 of 12 Commissioner dated 30.06.2011 as Ex. WW1/1;
2. copy of demand notice dated 02.07.2011 along with postal receipts are Ex. WW1/2 and Ex. WW1/3 respectively;
3. AD Card as Ex. WW1/4;
4. statement of claim filed before Conciliation Officer as Ex. WW1/5;
6. photocopy of ICard of the workman as Ex. WW1/6.
During his cross examination conducted by ld. AR for management no. 1, he was stated to have studied upto Class 12th and was having a little knowledge of English language. He was stated to be 53 years of age as on date of his deposition and was unemployed. Affidavit Ex. WW1/A was stated to have been prepared on his dictation at Labour Court, Hari Nagar, which was also got attested at the same place.
It was admitted by him that he was getting his salary from management no. 2 and he was also an employee of management no. 2 and was only deputed at the premises of management no. 1. Documents Ex. WW1/DA and Ex. WW1/DB were stated to be bearing his signatures at pt. A. It was also admitted by him that he had performed his duty at the premises of management no. 1 only for 22 days. It was again admitted by him that his services were never LIR No: 5411/16 Page 12 of 12 terminated by management no. 1 and his last drawn salary was Rs. 7,500/ which was being paid to him by management no. 2.
It shall be pertinent to mention here that the witness was not cross examined by management no. 2.
6. In rebuttal, management no. 1 had examined one Sh. L.D.Sharma, its AR who had appeared in the witness box and filed in evidence, his examination in chief by way of affidavit Ex. MW1/A, wherein, he had reiterated the stand of management no. 1 taken in its written statement. Besides this, he had also relied upon the following documents :
1. copy of board resolution of management no. 1 is Ex. MW1/1;
2. copy of power of attorney executed by one Sh. M.G.George, in favour of deponent is Ex. MW1/2;
3. copy of another power of attorney executed in favour of Sh. Raja Imam and deponent in the present case is Ex. MW1/3;
4. copy of certificate of incorporation of management no. 1 as Ex. MW1/4;
5. copy of agreement dated 11.12.2010 entered into between management no. 1 and management no. 2 Ex. MW1/5;
6. print out of one email dated 17.02.2011 regarding absenteeism of the guard sent by management no. 2 to management no. 1 is Ex.LIR No: 5411/16 Page 12 of 12
MW1/6;
During his cross examination conducted by ld. AR for workman, it was deposed by him that management no. 1 was not possessing any license to employ workers through contractors as per Contract Labour Act. He had no knowledge if management no. 2 was possessing any license to supply the contract labour or not. He had denied the suggestion that workman was employed at premises since February 2010 and not since February 2011. He could not tell the number of guards supplied by management no. 2 to management no. 1 in February 2011. However, the workman had worked with them only till 02.04.2011 and he had specifically denied the employment of workman with management no. 1 for more than 240 days. Thereafter evidence was closed on behalf of management no. 1.
However, management no. 2 had again not adduced any evidence in its favour.
7. In the light of aforesaid testimonies of the parties as appearing on record, my issue wise findings are as under: Issue no. 1. Whether there is any employer employee relationship between workman and management no. 1? O.P.W. The onus to prove this issue was upon the LIR No: 5411/16 Page 12 of 12 workman who during his cross examination by ld. AR for the management no. 1 had categorically admitted his employment under management no. 2 as well as the factum of getting his salary also from management no. 2. Hence, he had miserably failed to prove his employment under management no. 1 and thus the issue is answered in negative and decided in favour of management no. 1 and against the workman while holding that there existed no employer and employee relationship between the workman and management no. 1.
Issue no. 2. Whether the workman has not completed 240 days of continuous service with management no. 2 in the preceding year? O.P.M2.
The onus to prove this issue was upon the management no. 2. However, neither it had cross examined the workman on this aspect nor had adduced its own evidence on record to prove this fact. However, workman himself had admitted during his cross examination that he had worked with management no. 1 only for a period of 22 days. Besides this, the workman had failed to place on record any document to prove his employment with either of managements since the year 2010, nor, he had adduced any evidence to show his posting at any other establishment or premises since 2010 so as to establish on record that he had actually worked for 240 days in the year immediately preceding to the date of termination of his services.LIR No: 5411/16 Page 12 of 12
Although it is the settled preposition of law that onus always lie upon the workman to prove his 240 days of employment under the management. However, I fail to understand as to why this onus was shifted to management no. 2 by ld. Predecessor of this Court.
Be that as it may, even if no evidence had come on record on behalf of management no. 2, then also from the cross examination of workman, it has been clearly established that workman had not worked for 240 days continuously with either of managements. Even the documents Ex. WW1/DA and Ex. WW1/DB corroborate the stand of management that workman had joined the services in the year 2011 itself and not in the year 2010. The issue is accordingly answered in affirmative and decided against the workman.
Issue no. 3. Whether workman left his job of his own by writing letter dated 06.04.2011? If so, its effect? O.P.M2 The onus to prove this issue was upon the management no. 2, however, the management no. 2 neither adduced any evidence, nor it had chosen to cross examine the workman.
So far as the resignation letter dated 06.04.2011 LIR No: 5411/16 Page 12 of 12 of workman is concerned as alleged by management no. 2, the same has not been proved on record in accordance with law. Hence, management no. 2 had miserably failed to discharge the onus of proving this issue which is accordingly answered in negative and decided against management no. 2 and in favour of workman and it is hereby held that workman had not left the job by writing the letter dated 06.04.2011.
Issue no. 4. In terms of reference Whether services of Sh. Bijender Pal Singh S/o Late Sh. Mahavir Singh have been illegally/ and or unjustifiably terminated by the Management, and if yes, to what relief is he entitled?"
From the language of the reference, it becomes clear that the onus to prove the alleged illegal or unjustifiable termination of the service was essentially upon the workman. Admittedly no relationship of employeremployee existed between the present workman and management no. 1 who was stated to be an employee of management no. 2 which fact was also not denied or disputed by management no. 2 as well.
Although management no. 2 after filing of its written statement on record had failed to cross examine the workman or to adduce its own evidence on record. However, the averments made by it regarding absenteeism of the workman as well as his not performing his duties in a LIR No: 5411/16 Page 12 of 12 calender year for 240 days have been duly established and proved on record during cross examination of workman as well as from document Ex. MW1/6.
It was also stated by management no. 2 in its WS that the workman had voluntarily left the service after settling all his dues in full and final. However, this fact has not been proved on record.
It is not the case of the management no. 2 that it had terminated the services of workman at any point of time whatsoever. Hence, it was incumbent upon the workman to have proved his alleged illegal and/or unjustifiable termination which fact he had also failed to prove on record. Even if management no. 2 had chosen not to adduce any evidence, then also the workman could not have run away from his responsibility of proving alleged termination of his service as his case was required to stand on its own legs.
Hence, this issue is also answered in negative and decided against the workman.
Issue no. 5. Relief - In view of my findings to the above mentioned issues, the statement of claim as filed by the workman is dismissed being devoid of any merits.
Award is passed in aforesaid terms. Reference LIR No: 5411/16 Page 12 of 12 stands answered accordingly. Statement of claim is also disposed of accordingly in view of the above observations. Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 10.09.2018 Digitally signed by LOKESH LOKESH KUMAR KUMAR SHARMA Date: 2018.09.10 SHARMA 16:26:57 +0530 (LOKESH KUMAR SHARMA) ADDL. DISTRICT & SESSIONS JUDGE PRESIDING OFFICER - LABOUR COURT XIX DWARKA COURTS : NEW DELHI LIR No: 5411/16 Page 12 of 12