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7. In Workmen Of Nilgiri Co­Operative ... vs . on 12 August, 2013

                IN THE COURT OF SHRI SANJAY SHARMA
               PRESIDING OFFICER : LABOUR COURT­XIX  
                   KARKARDOOMA COURTS : DELHI.


LIR No. 213/2010
Unique Case ID No. 02402C0 194032010


    1.

Shri Chandra Singh S/o Shri Goriya

2. Shrinath Singh S/o Shri Shivcharan Singh C/o Engineering and General Karmchari Lal Jhanda Union (Regd.) 35, Govind Khand, Vishwakarma Nagar Delhi - 110 095 ..............................WORKMEN Versus M/S Fine Offset C­20, Gali No. 6, Jyoti Colony, Shahdara Delhi - 110 053 .......................MANAGEMENT Date of institution of the case : 09.7.2010 Date on which Award reserved : 07.8.2013 Date of passing the Award : 12.8.2013 Ref No. F.24 (48)//Lab/NE/2009/2016 dated 17.6.2010 A W A R D Having satisfied regarding existence of an industrial dispute between the parties, the Dy. Labour Commissioner, Government of NCT of Delhi in exercise of powers conferred by section 10(1)(c) and 12 (5) of the Industrial Disputes Act, 1947 (hereinafter referred as 'Act') with Labour Department Notification No. S­11011/2/75/DK (IA) dated 14th April 1975, LIR No. 213/2010 1 of 6 referred the present dispute to this Labour Court for adjudication with the following terms of reference :

"(a) Whether an employer­employee relationship existed between the S/Shri Chandra Singh S/o Shri Goriya and Shrinath Singh S/o Shri Shivcharan Singh? (b) and if answer to question at (a) above is in affirmative, whether services of S/Shri Chandra Singh and Shrinath Singh have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief are they entitled and what directions are necessary in this respect?"

2. Notice of reference was sent to the workmen who appeared and filed their statement of claim separately. Workman Chander Singh alleged that he joined the management on 15.4.1998 as Machine Man and his last drawn salary was Rs.3500/­p.m. Workman Shrinath Singh alleged that he joined as Fitter on 20.5.2002 at last drawn salary of Rs.3000/­. Both the workmen alleged that the management did not issue them any appointment letter, wages slip, ESI, leave book etc. and on their persistent demands, the management terminated their services on 01.7.2009 without paying wages for the month of June 2009. They made complaint before the Labour Office and also sent a legal notice dt. 31.8.2009 but the management did not respond. Hence, through this claim both the workmen prayed for their reinstatement with full back wages and continuity of service alongwith other consequential benefits.

3. The management appeared and filed written statement wherein all LIR No. 213/2010 2 of 6 the allegations were categorically denied. The management denied its relationship with the workmen as employer and employee and submitted that no such firm by the name of M/S Fine Off­set exists at the given address and Shri Shammi Haider runs M/S Fatma Off­Set Press at the said address since 01.1.2008.

4. The workmen did not file the rejoinder. From the pleadings of the parties, following issues were framed on 07.12.2011 :

1. As per terms of reference.

2. Relief

5. Workman Chander Singh examined himself as WW1 and Shrinath Singh examined himself as WW2. Shri SK Jain - Ld. AR for Management appeared on behalf of the management and collected the copy of affidavits. However, the management failed to cross­examine the workmen despite a no. of opportunities granted for the purpose. Hence, opportunity to cross­examine the workmen was closed. None appeared on behalf of the Management nor any affidavit was filed and thus, ME was closed.

6. I have heard Shri Suresh Gupta ­ Ld. AR for the workmen and have perused the record. Since none appeared for the management, arguments were not addressed on its behalf. My issuewise findings are as under :

LIR No. 213/2010                                                                     3 of 6
 ISSUE No. 1/Reference  :

7. In Workmen of Nilgiri Co­operative Marketing Society Ltd. Vs. State of Tamil Nadu and others III (2004) SLT 180 SC, the Hon'ble Apex Court while relying upon other precedents held that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him to prove it. Thus, the workmen in this case were duty bound to first of all prove the relationship with the management in order to succeed in the claim.

8. In their respective deposition before the Court as WW1 and WW2, the workmen deposed on the lines of their claim that they were the employees of the management. Though none of the workmen were cross­examined on behalf of the management, but still they could not produce any documentary evidence to show that they were ever employed with the management which could establish their relationship as employees of the management.

9. In Automobile Association of India Vs. PO Labour Court­II 2006 LLR 851 Delhi, it was held that the burden of proof of establishing the relationship of employer and employee lies on the person who claims for the same and can be proved either by production of appointment letter or written agreement or by circumstantial evidence in the nature of attendance register, LIR No. 213/2010 4 of 6 salary register, leave record or membership of ESI or PF. In the instant case, as observed above, the workmen failed to adduce any documentary evidence in support of their claim that they were employees of the management. During the entire proceedings, they even did not moved any application for seeking directions to the management to produce any such record. It was incumbent upon them to move such application when the management stopped appearing in the Court. The workman further failed to adduce evidence of any other person who might have been working alongwith them in the management.

10. It is also to be observed that the workmen placed on record the copy of their earlier claim dt. 03.9.2009 Ex.WW1/5 filed before the Labour Court on the same facts alongwith a complaint made to his Union dt. 02.9.2009 Ex.WW1/2. Besides, they also relied upon the complaint Ex.WW1/1 made by through their Union to the Labour Office. They further relied upon a demand notice Ex.WW1/3 written to the management by the Secretary of the Union which bears a vague date as 31.9.2009 and one other letter Ex.WW1/6 informing the Labour Office about the correct address of the management upon which date 30.9.2009 has been changed to 18.9.2009 and having overwriting. The workmen have further relied upon an electricity bill Ex.WW1/7 of the management and also relied upon two pages of a magazine 'Mookvakta' which has been published by the present management. However, none of these documents relied upon by the workmen in any way show that they were actually working with the management in any capacity and the same do not LIR No. 213/2010 5 of 6 establish their relationship with the management as its employees.

11. Thus, the workmen could not establish either by documentary or circumstantial evidence that there existed any employee­employer relationship between them and the management and thus, there is no question of termination of the services of the workmen by the Management, illegally or unjustifiably. Accordingly, this issue is decided against the workmen and in favour of the management.

ISSUE No. 2/Relief :

12. In view of the findings on Issue No. 1 above, the workmen namely Chander Singh and Shrinath Singh are not entitled to any relief.

Reference is answered accordingly. Copy of award be sent for publication and case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 12th Day of August 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURT­XIX KARKARDOOMA COURTS, DELHI LIR No. 213/2010 6 of 6