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[Cites 6, Cited by 0]

Delhi District Court

The vs The on 28 January, 2015

                    IN THE COURT OF SH. SANJEEV KUMAR
                     PRESIDING OFFICER LABOUR COURT, 
                      KARKARDOOMA COURTS, DELHI.


ID No.440/14 (Old ID No.190/09)
IN THE MATTER OF :­
Sh. Rahissudin S/o Sh.Chhotuddin
R/o N.B.K Gali No.3, 
Nai Basti Kabristan,
Village Kuraini, Narela,
New Delhi­40
                                                                ........ The Workman
                                          AND
M/s. Sai Taxi Service 
Shop No.6, Jang Pura Extn. Market
New Delhi­14
                                                           ....... The Management 


                              Date of Institution :  10.12.2009
                              Date of Argument   :  22.12.2014
                          Date of Judgment  :   28.01.2015


                                                         A W A R D

1.                        The   claimant   Sh.   Rahissudin   filed   the   complaint 

against the respondent M/s Sai Taxi Service before Conciliation

Officer with the submission to reinstate him with back wages and ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 1 out of 34 continuity of service. The matter was agitated in the Labour Department but no positive result had come out as such the reference was made to the Labour Court vide reference No. F. 24(32)/Lab./SD/2007/8864 dated 16.092009 referred an industrial dispute between the above mentioned parties with the following terms of reference :­ "Whether the services of Sh. Rahisuddin s/o Sh. Chhotuddin have been terminated illegally and /or unjustifiably by the management; if yes, to what relief is he entitled and what directions are necessary in this respect?"

2. Brief facts as stated in the statement of claim are that the claimant/workman has joined with service of Sai Taxi Service as "Driver" for about last 8 years and his last drawn salary was Rs. 6500/­ per month. He was a regular and permanent employee of the management. He was driving different vehicles of management such as car bearing Nos. DL­1CB9785 car make Ambassador for about 15 months, DL­3C­W­2274 car make Indica for about 30 months, DL4C AC 0058 car make Indica for about three months, DL 3C AF 3341 car make Indica for about 12 months and challans etc. pertaining to workman who proved that ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 2 out of 34 he was in the employment of the management. He further stated that the cause of termination was that he was pressing hard for the payment of his due salary and remaining and the legal benefits as he was working 12 hours daily like over time, bonus, leave incashment etc. No appointment letter, attendance card, leave book, pay slip etc. were given by the management and in order to victimize him management started stopping his salary without assigning any reason. He made several requests/reminds to management but management did not pay any heed rather the management assured and allured the workman to give his entire due payments whenever the funds available or arranged by them. The management terminated his service w.e.f. 20.11.05 without assigning any reason or notice in violation of Section 25F, F and H of the I.D. Act. He served demand notice dt. 16.05.06 upon the management but no reply was given by the management. Thereafter, he filed a claim vide LCA No. 48/2006 before court of Sh. Gurdeep Kumar, POLC, however, the said claim was rejected on the ground of limited jurisdiction. He sent a demand notice dt. 06.06.07 which was duly served upon the management but management did not reply to the same. Thereafter, he raised ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 3 out of 34 dispute before the Conciliation Officer Govt. of NCT, Delhi. The conciliation proceedings resulted in failure because of the adamant and non co operative attitude of the management. He prayed that an award be passed in favour of him reinstating him in service with full back wages.
3. Per contra,management in the written statement has denied all the contents of statement of claim. Management has taken preliminary objection that the claimant used the cars of the management on hire bases occasionally as an independent driver to perform the duties of the customers and payment of his charges was being directly paid by the customer on whose duty he used to go. Further objection was taken that the case of workman is mis joinder of the parties as Sh. Jai Dev Giri S/o late Sh. Jyoti Giri has no on concern with the management M/s Sai Taxi Service and M/s Sai Taxi Service is no more in existence. Further it is stated that present claim is not maintainable as workman is involved in a serious case of criminal breach of trust and a FIR had also been registered against workman vide FIR No. 443/2006 on 23.06.06 at P.S. Hazarat Nizamuddin on the direction of Hon'ble High Court in Criminal Writ Petition No. 759/2003 titled as Jaidev Giri Vs. ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 4 out of 34 State & ANR. It is further alleged that the present claim has been filed by the workman just as a counter blast to the said FIR.
On merit it is denied by the management that the workman worked as permanent/regular worker and he used to take Rs.6500/­ salary per month. It is alleged that the workman used to take cars of the management on hire basis occasionally as an independent driver to perform the duties of the customers and the payment of his charges for the duties was being directly paid by the customer on whose duty he used to go. Therefore, the claim of the workman is not maintainable and liable to be dismissed.
4. In the rejoinder filed by the workman contents made in the WS/reply were denied and workman re­agitated the contents of claim as true and correct. It is denied that workman used to take cars of management on hire basis as independent driver to perform the duty of customers and he was being directly paid the charges by the customer on whose duty he performed. It is also denied that the present case has been filed by the workman just to counter blast the FIR file by Jai Dev Giri. It is stated that the workman was not even in Delhi at the time of the incident shown in the alleged FIR. It is alleged that due to notice dt. 16.05.06 ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 5 out of 34 given by the workman false FIR was lodge against him. It is further stated that the said complaint is false, belated and after thought lodged with a view to implicate the workman as well as the proprietor of M/s Tony Transport Service in view of the fact that the proprietor of M/s Tony Transport Service had made a complaint dt. 20.03.05 with regard to the stolen vehicle vide FIR nO. 64/05, OF PS Ferozpur, Jhirka was registered against the management/respondent and the respondent remained in Jail for a period of three months. It is further stated that after his termination on 20.11.05 he attached his own vehicle No. DL 8C L 0325, make Qualis, with M/s Tony Transport Service w.e.f. 23.11.2005.
5. From the pleading of both parties, vide order dt. 10.11.2010 following issues were framed:
1. Whether the workman had never been in the employment of the management at any point of time and if so to what effect? OPM
2. Whether the management is no more in existence and if so to what effect? OPM.
3. Whether the management terminated the services of the ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 6 out of 34 workman illegally or unjustifiably and if so to what effect?

OPW

6. In order to prove issue, the workman examined 5 witness. He examined himself as WW1, WW­2 Akhilesh Kumar Agnihotri, Deputy Manager Product Marketing from the Poineer News Paper,WW­3 Bal Krishan, record keeper of from Hindustan Times. WW­4 Anil Kumar, Assistant Legal Department, Indian Express Ltd, WW­5 Ravinder Sharma, Manager with Ram Service Station .

7. On the other hand management Examined Sh. Ajay Giri, examined as MW1, MW­2 Ms. Sonali Nagpal, Clerk SWO Central Bank of India, MW­3 Sh. Surender Kumar, Inspector Income Tax department,MW­4 O. N. Gupta, Manager, Union Bank of India and MW5 Jaidev Giri.

8. After completion of evidence on behalf of both parties, I have heard the arguments from Sh. Neeraj Tiwari, Ld. AR for workman and Sh.Kamal Mehta, Ld. AR for management.

9. I have considered the arguments of Ld. ARs for both parties and carefully gone through the material placed on record. My issue wise findings are as under:

ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 7 out of 34 ISSUE No.1 " Whether the workman had never been in the employment of the management at any point of time and if so to what effect? OPM"
11. The case of workman is that he was employee of Sai Taxi whose proprietor is Jaidev Giri. Jai Dev Giri has denied that the claimant was his employee but it is stated that the claimant used to hire their car and used to take payment from the customers further it is stated that he is not the properitor of Sai Taxi but Ajay Giri his son is properitor.
12. In order to prove is case that the claimant is employee of the M/s Sai Taxi service and Sh. Jaidev Giri is proprietor of management workman has examined 5 witnesses. He examined himself as WW1 and lead his testimony through an affidavit Ex.WW1/A through an affidavit Ex.WW1/A and also relied upon documents Ex.WW1/1 to Ex.WW1/28 out of which Ex.WW1/5 & 6 were de­exhibited and marked as Mark­A & B and Ex.WW1/10 was marked Mark­C, Ex.WW1/13 & 14 were marked as Mark­D & E, Ex.WW1/15 were marked as Mark­F, Ex.WW1/16 was marked as Mark­G and Ex.WW1/17 to Ex.WW1/21 were marked ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 8 out of 34 as Mark­H to L.
13. He has repeated the same facts in his affidavit as stated in his statement of claim. He deposed that he is driver of the management since last 8 years and his last drawn salary was Rs.6500/­. He was a regular and permanent employee of the management. He further stated that he driven different vehicles of the management. He also deposed that management were taking 12 hours work and denied him of legal benefits like over time, leave en­cashment, attendance card, leave book, payslip or provided by the management etc. In his cross examination he admitted that an FIR No. 443/06 was registered against him on 23.06.06 at P.S. Hazrat Nizamuddin on the direction of Hon'ble High Court of Delhi in WPC No.759/03 and regarding that FIR a criminal case is adjudicated in the court of Sh. Sudhanshu Kaushik, MM, Saket Delhi. Sh. Jaidev Giri was the owner of the management Sai Taxi Service. He denied the suggestion that Ajay Kr. Giri was the owner of Sai Tax Services. He stated M/s Sai Taxi Service is still running. He admitted that he has not filed on record any appointment letter regarding service with the management. He ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 9 out of 34 admitted that he was working with Ramesh Kapoor since the day he was terminated from Sai Taxi Services and from last 8­9 months he left the job and now working as independent driver driving his own car make Maruti Swift Dezire No.DL8C­P 6784 registered in his name and presently he is running a general store at his residence. He denied the suggestion that present case is filed on the asking of Sh. Ramesh Kapoor. He denied the suggestion that he filed the case to extract money.
14. WW2 Deputy Manager Product Marketing from the Poineer News Paper. He deposed that management Pioneer News Paper do not have any record pertains to management Sai Taxi Service as summoned by the court. WW­3 Bal Krishan, record keeper of from Hindustan Times. He also deposed that they do not have any record pertaining to management Sai Taxi Service. Hence both WW2 and WW3 are irrelevant witness as they stated that no record summoned by workman is available.
15. WW­4 Anil Kumar, Assistant Legal Department, Indian Express Ltd. produced the authority letter along with Form­16A pertaining to Sai Taxi Service of the year 2009 & 2010 same is Ex.WW4/A, B, C & D. he also proved that the document ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 10 out of 34 Ex.WW4/E is letter 15.05.07 written by Vivek Shukla, addressed to IO ASI Islamuddin which contained annexture I.e. details of vehicles used by Indian express. From this annexture it is proved that car used by them was supplied by Sai Taxi service but on perusal of said list I do not find any of car number which workman was allegedly driving for Jai Dev Giri.
16. WW­5 Ravinder Sharma, Manager with Ram Service Station produced ledger for the period of 01.04.03 to 31.03.04 pertaining to Sai Taxi Service. As per ledger Sai taxi Service had credit account with the Ram Service Station and the Taxi of Sai Taxi Service used to take petrol from the Ram Service Station and inthe year 2003­04. He deposed that documents markWW1/X later on exhibited as Ex.WW5/1 bears his signature at point A. He also proved the copy of the requisition slips earlier marked as MW1/X­1 as Ex.WW5/2 and deposed that same were handed over to the IO vide letter Ex.WW5/1. From the document produced by him it is proved that vehicles of Sai Taxi Service were taking petrol on credit from Ram service Station under the account of Sai Taxi service in year 2004 and 2005. On perusal of car no. from document EXWW5/1 I found only car no.2274 is ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 11 out of 34 mentioned which workman was allegedly driving.
17. On the other hand management examined Sh. Ajay Giri, who deposed that he is proprietor of the management. It is stated that the complaint filed by him on behalf of said management. He further stated that after closure of the said management he is doing private service and his monthly sary is directly deposited in the account No.30800201091035 in Union Bank of India, Branch Patel Nagar, New Delhi. He further stated that the workman occasionally taken the above mentioned cars of the management on hire bases as independent driver to perform the duty of customers and payment of charges was paid by the customer on whose duty he used to go. He further stated that Jaidev Giri is no more concerned with the management M/s Sai Taxi Service. Moreover the management M/s Sai Taxi Service is no more in existence. He further deposed that the workman was involved in a serious case of criminal breach of trus and FIR was also registered against the workman FIR No.443/06 on 23.06.06 at PS Hazarat Nizamuddin, Ex.MW1/1 on the direction of high court and the present case was filed by the workman just as a counter blast to the said FIR. He further deposed that the ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 12 out of 34 workman has filed an application u/s 33C (2) of ID Act and same was dismissed by the court of sh. Gurdeep Kumar, Ld. POLC, against the management which was dismissed by High Court vide its order dt.05.02.07.
In his cross examination he stated that the management given its service to news paper agencies on contract basis. He further stated that after completion of his BE he was in private service. He completed his BE in 1997 and he further deposed that he has given his services to Indian Express, Hindustan Times, and two other newspapers on interval basis. There is no specific period for providing the services to the news paper agency, they used to provide their services as and when it required they provided the same. He further deposed that he used to raise the bill against the service provide to the different newspapers agencies. He do not have the copies of the bills and he can produce the bank accounts of the management and the bills were reimbursed in the name of management. He denied that the management used to run by Sh. Jaidev Giri. He further voluntarily stated that he used to take advise/help from his father as and when required. He further stated that the Ram Service Station is a petrol ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 13 out of 34 pump from where they used to take fuel and the bill is Ex.WW1/11 is the copy of the bills submitted by M/s Ram Service Station to the management for taking fuel for the vehicles of the management. He used to pay bill to Ram Service Station. He admitted that the document ExWW1/12 consisting of 1 to 16 pages do not bears his signatures. He further deposed that he cannot say whether same bears the signature of Jaidev Giri, the bills were paid by Sh. Jaidev Giri. He admitted the suggestion that WW/12 do not bears his signature. He was given suggestion that the bill was paid by Jai Dev giri. He admitted that he do not have file any documents to show that the bills was paid to Ram Service Station. He further stated he do not know since when the trial of the present case was started as he was not the party and never received any summon in the present case. He admitted that Jaidev Giri had told him about the said case. He admitted the suggestion that proceedings initiated at labour office by workman and Ex. WW1/1 is the claim petition filed in labour office and Ex.WW1/2 is W.S. filed by Jaidev Giri. He admitted the suggestion that the Ex. WW1/4 was sent by the workman to Jaidev Giri. He also admitted that Ex. WW1/22 bears the name Jaidev Giri and vehicle ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 14 out of 34 No. DL3CAF - 3341 is in the name of Jaidev Giri. He stated that he has no concern with said vehicle. He cannot say whether document Mark E was issued in the name of Jaidev Giri by Dainik Jagran. The management was closed in the year 2010 but he do not know from which date he has filed the return of the Sai Taxi Service but he filed same in the month of April, 2010. He has not filed any document regarding the closure of management. He admitted that management has not filed any bank account statement regarding the closure of management. He further admitted that his father remained in custody in Bhondsi Jail at Haryana. He denied the suggestion that his father appointed the workman in the year 1997. He stated that the management started his business in the year 1999 to 2000 at that time has two cars. He do not remember the number of the said cars and the same were not with him at that time. He stated that he do not have any record that he gave the vehicle to workman on hire for Chandigarh. The workman has hired his vehicle for one day at one time. He did not fix the exact amount of giving the vehicle on hiring but it was generally ranging 300­400 per day. The workman used to hire car for carrying news paper of different company.He obtained contract ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 15 out of 34 for transporting news paper from the news paper company and delivered at different places mainly Chandigarh, Dehradun etc. usually workman taken the vehicle after 2­3 days for delivering news papers in between period some other driver used to hire cars for delivering the news paper. He stated that in the year 2010 when he closed the proprietorship firm Sai Taxi, he had only two cars. Th workman used to deliver his news paper at different places. He do not pay money to the workman for delivering the news paper to the news paper companies and and the workman was authorized to pick up customer and used to charge money from those passengers and he used to keep that money. He denied the suggestion that the workman used to bring Dak and other papers while returning back from the newspapers agency where he used to deliver the news paper. As per para 8 of his affidavit customer means the passenger he used to pick up while returning back after returning the newspaper. He used to pay money to the workman for fuel expenses and he used to fill up the fuel in the vehicle. In the year 2002­2003 he had contract with Ram Service Station to provide fuel for the vehicles and during the tenure of contract fuel expenses were paid directly to the Ra Service Station. ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 16 out of 34 He denied that during the said period when fuel was taken from the Ram Services at that time Sai Taxi Service was having 10 to 12 cars. He denied that the owner of Sait Taxi Service is Sh Jai Dev Giri, his father. He further denied that the workman was employee of Sait Taxi Service and was employed by his father. He also denied that the contract of delivering of the news papers of Hindustan Time, Indian Express, Business Standard, Poineer, the Hindu, Veer Arjun, Rashitriya Sahara, Punjab Kesari and Dainik Jagran was in the name of Sait Taxi under the proprietorship of Sh. Jai Dev Giri, his father. He stated that he do not know when his father bought car No.DLC3, AF 3341. He do not know whether the workman had contributed rupees one lac in purchasing the said car. He also do not know whether the workman was demanding return of said one lac rupees and salary for the period of 01.08.03 to 20.11.05 from his father and due to which his father terminated the service of the workman.
19. MW­2 Ms. Sonali Nagpal, Clerk SWO Central Bank of India, has produced the statement of account for the year 2007­2011 for the account no.1027418806 in the name of M/s Sai Taxi as Ex.MW2/1. From this document nothing is proved who is ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 17 out of 34 owner of Sai Taxi.
20. MW­3 Sh. Surender Kumar, Inspector Income Tax department has proved the income tax returns of the year 2007­2008­2009­ 2010 and 2011 as Ex.MW3/1(8 pages). As per him the proprietor of the management was Ajay Kumar Giri. He stated that the returns Ex.MW1/1 ( 5 pages ) is correct. But on perusal of these returns I found that same has been filed in the personal capacity by Ajay Giri and do not bear name of Sai Taxi,hence these Income Tax Return do not proved that Ajay Giri is proprietor of Sai Taxi.
21. MW­4 O. N. Gupta, Manager, Union Bank of India, who has produced account opening farm which is Ex.MW4/1 ( 2 pages colly) in the name of Ajay Giri, Ex.MW4/2 pan card, Ex.MW4/3 election card, Ex.MW4/4 is DL , KFC restaurant Identity card is Ex.MW4/5 and Ex.MW4/6 opening of salary account given by the company for Sh. Ajay Giri S/o Sh. Jai Dev Giri, and statement of accounts for the year 28.06.12 to 28.01.14 Ex.MW4/7 three pages collectively. He deposed that the account number of Sh. Ajay Giri is No.30800201091035. This account is salary account of Ajay Giri. Thus from these documents it is ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 18 out of 34 proved that salary account of Ajay Giri was opened by A.N. Traders on19.06.12. Thus proved that Ajay Giri was working in A.N. Traders from 19.06.12.
22. MW5 Jai Dev Giri has deposed that he has no concern with the Sai Taxi and his son Ajay Giri was the proprietor. He also deposed that workman used to hire above mentioned cars on the hire basis.
In his cross examination he deposed that he know the workman for last 9­10 year. Workman came to him with the reference of Sh. Ramesh Kapoor for providing car on contract basis. He had not entered into contract with the workman in this regard. The FIR No.443/06 was registered on his complaint. The workman had stolen his car bearing no. DL 3C 3341 and regarding the stolen of the card the said FIR was registered after due investigation. The incident is of November, 2004. He do not remember the date of purchasing the car it was two years prior to 2004. He denied that workman was always in possession of aforesaid car and was driving the said car vol. Stated workman used to take vehicles on contract basis occasionally. He do not remember the exact date when first time the aforesaid car was ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 19 out of 34 given on the contract to workman. On 30.11.05 the workman has taken his car to deliver the news paper at Chandigarh. The news paper was taken from Indian express. On 30.11.05 also he was running the business of transport from shop no.6, Jangpura Extension Market New Delhi. He had only contract with news paper Indian Express for delivery of News paper to Chandigarh. He denied the suggestion that the workman was only driver who used to take the car No. DL 3C A 3341. He denied the suggestion that he asked to return the car on 29.12.2005 and workman has refused to return the car. He has denied that the workman was his employee and working as driver since last 2­4 years. He cannot say whether Sai Taxi Service is being run prior to 2004 as he has no personal knowledge. He denied the suggestion that he also remained contractor for delivery of news paper of Hindustan times, Business standard, Poineer, Dainik Jagran, Rashtriya Sahara, Punjab Kesari and he has intentionally not filed copy of contract. He stated that he was in bhondsi jail due to an accident done with his car no.DL1CD8529 when car was on the delivery of newspapers. He denied that car no.DL1CD8529 was used under Sai Taxi. He denied that contract to deliver newspapers was in the ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 20 out of 34 name of Sai Taxi. He denied the suggestion that he has filed a WS before DLC Pushp Vihar and before Gurdeep Kumar Ld.POLC against the claim of workman being proprietor of Sai Taxi Service. He stated that he cannot say when first time or how many time workman hired his car. He denied the suggestion that workman was employed in year 1997 and his last drawn salary was Rs. 6000/­ p.m. or workman has worked for 240 days continuously. He do not know how many car he owned from 1997 to 2005 or in year 2005. He denied the suggestion that he received cheque in the name of Sai Taxi from newspapers agency.
23. It is argued by Ld. ARM that onus was upon the workman to proved to proved that Jaidev Giri was proprietor of Sai Taxi Service and was workman was employee of Sai Taxi service but workman through the evidence led by him has misrebly failed to proved the said facts.
24. On the other hand Ld. ARW has argued that workman through his testimony and the documents proved by him and WW4 and WW5 has been able to proved that Jaidev Giri was proprietor of Sai Taxi Service and was workman was employee of Sai Taxi service.
ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 21 out of 34
25. I have considered the arguments of rival parties. As evident from the W.S. of the management/respondent it has taken two ground to deny that the claimant is not employee of Sai Taxi service whose proprietor is Sh. Jai Dev Giri. It is argued that Jai Dev Giri has no concerned Sai Taxi Service as proprietor of Sai Taxi Service is Sh. Ajay Giri. Second objection of respondent/management is that the claimant was not the employee of the management but he has taken the car of the management on hire basis.
26. As far as first defense of management is concerned though respondent Jaidev Giri has denied that he is proprietor of the Sai Taxi Service and has asserted Ajay Giri is the properitor of Sai Taxi but on perusal of the W.S. filed by the Jaidev Giri EXWW1/2 before Conciliation Officer I found that in the said W.S. Jai Dev Giri had taken no such objection that he was not proprietor of Sai Taxi Service. Undoubtedly Respondent/ MW5 Jaidev Giri in cross­examination has denied that he has filed any WS before the Ld. DLC Pushp Vihar but I found the signature of Jaidev Giri in W.S. filed before this court Ex.WW1/2 are almost similar. No suggestion has been given to Workman/WW1 by AR ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 22 out of 34 of respondent that signature on WW1/2 is not of Jaidev Giri. Even in his affidavit EXWW5/1 Jai Dev Giri had not stated that WW1/2 does not bear his signatures. Management had not taken the plea that he did not appear before Conciliation Officer. Hence there is no ground to disbelieve that said WS was not filed by Jai Dev Giri. Even from the perusal of order dt. 5.2.2007 EXWW1/9 passed by Sh. Gurdeep Kumar on the application filed by workman u/s 33C(2) of ID Act it is evident that Jaidev Giri had not taken objection that he is not proprietor of M/s Sai Taxi service.
Further from the document WW4/E it is evident that the letter written by Sh. Rajiv Gautam to Islamuddin, Assistant Sub­ Inspector, it is evident that he has mentioned the name of Jai Dev Giri in braket after Sai Taxi service which proved that Sai Taxi Service was owned by Sh. Jai Dev Giri. No document has been produced by the respondent to proved that prior to 2005 M/s Sai Taxi Service was owned by Sh. Ajay Giri and not by Sh. Jai Dev Giri. The MW5 Jai Dev Giri has admitted that in his cars newspapers were used to be delivered. He has not explained in what capacity he used to delivered newspapers to Chandigarh and other places to various newspapers agency. Definitely if he was ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 23 out of 34 delivering news papers than he must have entered into agreement with newspapers agency. There he has canceled. Ajay Giri MW5 has not place any documents that he was proprietor of Sai Taxi service in the year 2005 or prior to it. Hence, in view of the aforesaid facts I held that preponderance of evidence is in favour of workman that Jai Dev Giri was the proprietor of M/s Sai Taxi Service.
27. As far as next contention of Ld. ARM is concerned I am fully agree with the contention of the Ld. ARM that the onus was on the workman to prove that he is employee of the management and has worked continuously for 240 days in a year proceeding his termination. In this regard I rely upon the judgement 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."

ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 24 out of 34 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 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."

The following principles laid down by the Supreme Court ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 25 out of 34 Range Forest Officer Vs. S.T. Hadimani 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 statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."

28. Now reverting back to the case, though the workman in his oral testimony has deposed that he was working with the management since last 8 year but he has not given any specific date or month or year either in his statement of claim or affidavit when he joined the service with the management. The workman has deposed that no appointment letter, attendance card, leave book, pay slip was issued to him but he has failed to prove that ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 26 out of 34 why he has not filed any complaint to the management or labour authority in this regard. Further more the workman has stated in his statement of claim as well as in affidavit EXWW1/A that he was not paid salary by the management from 01.08.2005 to 20.11.2005 whereas in his complaint filed before Conciliation Officer EXWW1/2 he has stated that he was not paid salary from 01.08.2003 to 20.11.2005. Where as in his cross­examination he has stated that he was terminated by Jai Dev Giri as he was demanding his salary of last two and half year due upon the management. Thus, he has taken contradictory stand with regard to his salary dues. Further the suggestion given by the ld. AR for workman to the MW­1 Ajay Giri that the workman has contributed Rs. 1,00,000/­(one lac) for purchasing car bearing registration No. DL A3 3341 shows that on the one hand respondent Jaidev Giri has withheld his salary for 2 and half year on the other hand he is giving Rs. 100,000/­ to him for purchasing car. This cast suspicion on his testimony that his salary for 2 and half year was due upon management. Rather this suggestion itself proved that he was not employee of the Jaidev Giri but something else otherwise why he would have given Rs. 1,00,000/­ in purchasing car DL A3 3341 of ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 27 out of 34 which workman allegedly was working as driver. The workman had deposed that he driven vehicle no. DL­1C­B­9785,DL­3C­ W2274,DL4C­0058 and DL3C­AF 3341 for management but he has produced documents for repairs of vehicle of DL3C­AF 3341 only to purchase which he allegedly contributed Rs.1,00,000/­. Thus as per his own admission he was co­owner of said car hence even if he drive the said car it does not make him employee of Jaidev Giri the proprietor of Sai Taxi. Hence, I do not found oral testimony of workman reliable.

Even otherwise, to establish the relationship of employer­employee best proof is appointment letter, wage slip, muster role, attendance register ESI or PF record or any other documents could be relevant documents as held in judgement of the Hon'ble High Court of Delhi in case titled as Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006LLR551. Relevant para is reproduced 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."

ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 28 out of 34

30. As stated above the workman has not produced any appointment letter, wages slip, I card, muster roll and any other document which shows that he is employee of Jai Dev Giri. According to workman management has not supplied these documents to him. But workman has failed to explained why he had not filed any complaint prior to his alleged termination in this regard hence said averment of workman appeared to be afterthought.

31. As far as documents relied upon by workman is concerned he has relied upon documents Ex.WW1/1 to WW1/28. The documents WW1 is claim petition filed before Conciliation Officer,Ex.WW1/2 is the copy of written statement filed by the management,Ex.WW1/3 is replication to the W.S. of management. From WS it is evident that management has denied that claimant is his employee. Hence respondent has not admitted that claimant is his employee. The document EX WW1/4 is copy of the demand notice dt. 06.06.07 sent by Sh. Neeraj Tiwari, Advocate, to Jai Dev Giri. This notice also do not prove that the employment of the workman with Sai Taxi Service. The document Ex.WW1/7 & 8 are the AD cards regarding receiving ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 29 out of 34 of demand notice. All these documents are part of proceeding taken by workman prior to and before Conciliation Officer and only proved that workman is asserting himself as employee of management but do not itself proved that the claimant is employee of the management and could be only upon as corroborative evidence. The document Ex.WW1/9 is order dt. 05.10.07 passed by by Sh. Gurdeep Singh in application us 33 (C) (2) of the ID Act filed against management. The document Ex.WW1/8 ( 45 pages collectively) bills raised by Ram Service Station(petrol pump) of the period of November, 2004 to 31st August, 2005 qua Sai Taxi Service. The document Ex.WW1/12 are invoices of petrol taken from Rama service Station for the period of 2005.The document Ex.WW1/8,WW1/12 only proved that Sai Taxi Service was taking petrol from M/s Ram Service Station on credit basis for its vehicle.

The document Ex.WW1/22 is the bill/cash memo of M/s Balaji Auto Service Pvt. Ltd. regarding repair of car DL3CAF3341 issued in the name of Jai Dev Giri. The document Ex.WW1/23 is the job card , WW1/24 is the cash receipt issued by M/s Mawla Automobiles Pvt. Ltd both dt. 09.04.05, and Ex.WW1/25 is job card of M/s A­One Morors Pvt. dt. 25.11.2004 and regarding ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 30 out of 34 repair of car DL3CAF3341 issued in the name of Jai Dev Giri. All these documents only proved that car no. DL3CAF3341 was got repair in the name of Jaidev Giri. WW1/26 is bill of wheel alignement issued by Fedral Tyres dt. 30.09.2005 of car no. DL3CAF3341.The document Ex.WW1/27 is reply alongwith annexure of the Varun Shukla, an official of Indian Express Newspapers Ltd., to Mr. Islamuddin, Asst. Sub Inspector DIU through which he informed that details of vehicles used by them from Sai Taxi Service is available from August, 2004 to November, 2004.The document Ex.WW1/28 is letter alongwith annexure of one Sh. Rajiv Gautam, manager of Pioneer Newspaper providing of details of vehicles used by them from Sai Taxi (Jai Dev Giri). Hence no document proved by workman is related with his employment. Jaidev Giri may have been running Sai Taxi service, or taking petrol on credit for his car or may be delivering the newspapers. But these documents itself do not prove that workman is employee of JaiDev Giri or Sai Taxi Service.

32. As far as contention of Ld. ARW that Jai Dev Giri has admitted that workman used to drive his car therefore said admission is proof of employment. Undoubtedly Jai Dev Giri has ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 31 out of 34 admitted in his WS as well as testimony that workman used to drive his car and used to deliver newspapers of the management at Chandigarh but that itself do not prove that he driven the same as employee of the Jai Dev Giri or that he has worked for 240 days continuously in a year prior to his alleged termination. He has categorically deposed in his testimony workman used to hire his car as independent driver. Nothing much has come out in his cross­examination. More ever the workman has to proved his case by leading cogent oral and documentary evidence as onus was on him to prove he was employee of respondent but as stated above he has failed to led the cogent, reliable evidence. I do not find his testimony reliable for the reason as discussed above whereas documents proved by him do not prove that he is employee of Sai Taxi Service. Hence, I held that the workman has failed to prove that there exists any relationship of employer­employee between and M/s Sai Taxi Service. Hence Issue no.1 is decided against the workman.

Issue no.2 " Whether the management is no more in existence and if so to what effect? OPM."

ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 32 out of 34

33. The onus was on the management to proved that Sai Taxi service has been closed. The management has examined MW1 to MW5. Through both MW1Ajay Giri and MW5 Jai Dev Giri have deposed that Sai Taxi Service has been closed but the documents of bank account or income Tax produced by MW1 to MW4 are not related with closure of Sai Taxi Service. No other documents have been produced to represent oral testimony that Sai Taxi Service has been closed. Hence I held that respondent has failed to discharge the onus. Therefore I held that respondent has failed to prove Sai Taxi Service has been closed.

Issue no.3 " Whether the management terminated the services of the workman illegally or unjustifiably and if so to what effect? OPW"

34. In view of my findings on issue no.1 I held that when the claimant is not employee of respondent hence no question of alleged termination by Sh. Jai Dev Giri, proprietor of M/s Sai Taxi Service. Even otherwise as stated above no termination letter has been produced by the workman to prove that his service was terminated by Jai Dev Giri on 20.11.1995. The workman has ID No.440/14 Rahisuddin M/s Sai Taxi Service Page No. 33 out of 34 admitted in his cross examination that he was working with Ramesh Kapoor since the day of his termination from M/s Sai Taxi Service. It is highly unlikely that the workman has got alternative job on the same day when he was being terminated by Jai Dev Giri. Hence I do not find his testimony reliable that he was terminated by management on 20.11.1995. hence, I held that workman has been failed to prove that he was terminated by the management much less illegally or unjustifiably. Hence Issue no.3 is decided against the workman.

Relief

27. In view of my finding on issue no.1 and 3 I held that the workman is not entitled to any relief. His claim is hereby dismissed. Reference is answered accordingly. Copy of the award be sent to the Secretary (Labour), Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.


Announced in the Open Court 
on 28th January, 2015                               (SANJEEV KUMAR)
                                             Presiding Officer, Labour Court,
                                                 Karkardooma Courts, Delhi.

ID No.440/14                              Rahisuddin M/s Sai Taxi Service                                         Page No. 34 out of  34