Delhi District Court
Between vs The on 16 May, 2008
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI
ID NO. 11/2006
BETWEEN
The Workman
Sh. Pandit Charanjeet
S/o Sh. Pandit Rai Chand
C/o Bhartiya Karmath Karamchari
Muktiwahini Union,53, Khilona Bagh,
Bhama Shah Road,
Delhi -110009
AND
The Management of
M/s Bajaj Printers,
29, Tent Market,
Indra Nagar,
Delhi-110033
Date of institution of the case : 07.05.2003
Date of reserving the award : 02.05.2008
Date of announcement of award : 16.05.2008
AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour)
vide reference no. F.24(3536)/2002/Lab./2433-37 dt. 24.04.2003 referred
the dispute for adjudication between the Management of M/s Bajaj Printers
and its workmen Sh. Pandit Charanjeet S/o Sh. Pandit Rai Chand in the
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following terms of reference:-
"Whether the services of Sh. Pandit Charanjeet S/o
Sh. Pandit Rai Chand have been terminated illegally
and /or unjustifiably by the management, and if so,
to what sum of money as monetary relief alongwith
consequential benefit in terms of existing laws/Govt
Notifications and to what other relief is he entitled
and what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he has
been employed with the management for the last 16 years as Printing Man
and his last drawn salary was Rs. 3500/- per month. The workman was
working to the satisfaction of management and never gave any chance of
complaint to the management. The management was not providing the
legal facilities i.e appointment letter, leaves etc. and the management was
also not maintaining service record of the workman and the workman
orally demanded the aforesaid facilities on which management started
remaining annoyed with the workman. On 27.07.2001, when workman
reported for duty, the management pressurised the workman for submitting
resignation and on refusal by the workman, the management illegally
terminated the services of the workmen without issuing any notice or
charge-sheet and dues of the workman were also not paid. The workman
sent notice of demand to the management but the workman was not
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reinstated. The workman presented claim before the conciliation officer
but no settlement was arrived as the management did not take interest in
the conciliation proceeding. The workman is unemployed since the date of
termination of his service. It is prayed that an award be passed thereby
reinstating the workmen in service with full back wages and continuity of
service.
3. The notice of statement of claim was issued to the management and
the management has filed WS and has contested the same. In the WS
management has denied that the claimant was employed with the
management for the last 16 years as Printing Man. It is stated that the
claimant had taken the press on contract basis from one Smt. Ish Kumari
and the claimant has left the work intentionally while he has to pay the
money to the various persons of the locality, in order to avoid making
payment to the said persons. The claimant has also to make the
payment till date to Smt. Ish Kumari. The claimant has dealt with number
of managements in the capacity of contractor of the M/s Bajaj Printers. It is
stated that the claimant has taken the press in the year 1997 @ Rs. 3,000/-
per month and he had admitted that he will make payment of Rs. 3,000/- to
Smt. Ish Kumar. In the month of July 2001, the claimant left the shop
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alongwith the machinery intentionally and he has to pay Rs. 24,000/- as
charges to the management and has also to pay Rs. 8,000/- of stationary
which he has purchased to run the Printing Press. It is stated that as the
claimant was not employed with the management hence, there is no
question of providing legal facilities as alleged. It is denied that on
27.07.2001 the management terminated the services of claimant as
alleged. It is also denied that the claimant had issued notice of demand to
the management. It is stated that claimant was Contractor and the
contractor is not entitled for the relief which the claimant has claimed by
way of statement of claim. It is stated that the management had filed reply
in the conciliation proceedings and the management did not agree with
the demand of claimant to remit the amount which the claimant has to
receive from the claimant. It is stated that claimant is taking order of
printing press from the offices of local area and from the general public and
used to get the printing work done from other printing presses and is also
doing the work of agentship in New Subzi Mandi, Azadpur, Delhi . It is
stated that there is no relationship of employer and employee between the
parties and the claim of the claimant is liable to be dismissed.
4. The workmen has filed rejoinder to the written statement of
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management. In the rejoinder workmen have reiterated the contents of
statement of claim and have controverted the allegations of management
as stated in the WS. It is denied that the present respondent Sh. Bhagwan
Das has also sold the printing press to one Smt. Ish Kumari on 15.06.99. It is denied that claimant has taken printing press on contract basis from Smt. Ish Kumari . It Is denied that the claimant left the work intentionally or that the the claimant has to pay the money to any person in the locality or that the claimant dealt with any firms on behalf of Bajaj Printers. It is also denied that the claimant was in anyway was responsible for the management, work , control and supervision of M/s Bajaj Printers.
5. From the pleadings of parties following issues were framed by my Ld. Predecessor on 27.01.2005:-
1. Whether there existed relationship of employer and employee between the parties, if so, its effect? OPW
2. As per terms of reference.
6. To prove his workman examined himself as WW1.
7. The management examined Sh. Bhagwan Dass Bajaj as MW1, Smt. Ish Kumari as MW2 and Sh. Munni Lal as MW3, :6:
8. I have heard Authorized Representatives for both the parties and carefully perused record. My findings on specific issues are as under:-
ISSUE NO.1
9. In the statement of claim workman has stated that he has been employed with the management for the last 16 years as Printing Man and the management was not providing statutory facilities and he was orally demanding the same from the management on which management got annoyed and terminated his services illegally on 27.07.2001. In the WS management has denied that the claimant was employed with the management. In the WS management has stated that claimant had taken the press on contract basis from one Smt. Ish Kumari and claimant left the work intentionally while he had to pay the money to various persons of the locality and he was to make payment of contract amount to Smt. Ish Kumari also.
10. The plea of AR for management is that it is for the workman to prove that there existed relationship of employer and employee between the parties and that the workman has worked continuously for 240 days in a year with the management.
11. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State of Tamil :7: Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held that:
36. In a given case it may not be possible to infer that a relationship of employer and employee has come into being only because some persons had been more or less continuously working in a particular premises inasmuch as even in relation thereto the actual nature of work done by them coupled with other circumstance would have a role to play.
38. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is appointing Contd.....:8:
authority; (b) who is the pay master; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject.
12. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179 (SC), the Hon'ble Supreme Court held that 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. Filing 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 this ground alone, the award is liable to be set aside.
13. In Rajasthan State Ganganagar S. Miils Ltd. v. State of Rajasthan and another, 2004 (4) LLN 845; Municipal Corporation, Faridabad v. Siri Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and Madhya Pradesh Electricity Board v. Hariram, 2004 (4) LLN 839: 2005 LLR 1 (SC), the Hon'ble Supreme Court reiterated the principle that burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart :9: from examining himself to prove the factum of his being in employment of the employer.
14. In Surendranagar District Panchayat and Anr. v. Jethabhai Pitamberbhai, 2006 LLR 250 the Hon'ble Supreme Court held that when the workman apart from examining himself in support of his contention has not produced any proof in the form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year to show that he has worked with the employer for 240 days to get the benefit under section 25F of the Industrial Disputes Act, in the absence of evidence on record the Labour Court and the High Court have committed an error in law and fact in directing reinstatement of the respondent-workman.
15. Hence, as per aforesaid decisions it is for the workman to prove that there existed relationship of employer and employee between the parties and that he has worked continuously for 240 days in a year with the management and his services were illegally terminated by the management.
16. To prove his case workman appeared in the witness box as WW1 and he adduced evidence by way of affidavit Ex. WW1/A. In the statement of claim, the workman has not mentioned the date of his appointment with the management and he has only stated that he has been employed with :10: the management for the last 16 years and his services were terminated on 27.07.2001. In the Statement of Claim workman has stated that he has been employed with the management for the last 16 years but in Para-2 of affidavit Ex. WW1/A , the workman has stated that he has been employed with the management for the last 17 years. In Para-5 of the statement of claim, the workman has stated that he filed claim before the conciliation officer. Im the cross-examiantion workman/WW1 admitted that Ex. WW1/M2 is the copy of the claim statement filed by him before the conciliation officer. In the statement of claim and in the affidavit Ex. WW1/A workman has stated that he was employed with the management as Printing Man but in the Para-1 of statement of claim which was filed by workman before the conciliation officer i.e Ex. WW1/M2, the workman has stated that he was employed with the management as Compositor. Hence in the statement of claim which has been filed before this court and in the affidavit Ex. WW1/A the workman has mentioned his post as Printing Man but in the statement of claim Ex. WW1/M2 which was filed before the conciliation officer, the workman has mentioned his post as Compositor . In Para-3 of the statement of claim and in Para-4 of the affidavit Ex. WW1/A workman has stated that his services were terminated by :11: management on 27.07.2001 but in the statement of claim Ex. WW1/M2 which was filed by workman before the conciliation officer, the workman has stated that his services were terminated by management on 30.12.2000. Hence, in the pleadings and evidence which has been adduced by the workman, the workman has claimed that his services were terminated by the management on 27.07.01 but in the statement of claim Ex. WW1/M2 the workman has pleaded that his services were terminated by management on 30.12.2000. The appropriate government has referred the dispute to this court on the basis of statement of claim which was filed by the workman before the conciliation officer i.e Ex. WW1/M2 and in the statement of claim Ex. WW1/M2 the workman has pleaded that his services were terminated on 30.12.2000.
17. Although, in the affidavit Ex. WW1/A workman has stated that he has been employed with the management for the last 17 years prior to termination of his services on 27.07.01 which means that as per case of workman has been employed with the management since the year 1984, but in the cross-examination workman /WW1, stated that he has been working with the management since the year 1986. The workman/WW1 further stated in the cross-examination that in the year 1986 Sh. Arjun :12: Bajaj who is the younger brother of Sh. Bhagwan Das Bajaj ( who is the present proprietor) was proprietor of the management and he (workman) was employed by Sh. Arjun Bajaj. Although in the cross-examination workman/ WW1 stated that he was employed by Sh. Arjun Bajaj, who is the present proprietor of the present management but in the statement of claim and in his affidavit Ex. WW1/A workman has nowhere set up the case that he was employed by previous proprietor of the management Sh. Arjun Bajaj. The workman has also not pleaded that Sh. Arjun Bajaj sold the management to Sh. Bhagwan Das Bajaj and Sh. Bhagwan Das Bajaj acquired the management of M/s Bajaj Printing with all assets and liabilities and services of the employees working with the management were also transferred to Sh. Bhagwan Das Bajaj when he became owner of the management. The workman has neither pleaded nor proved as to when the proprietorship of the management changed from Sh. Arjun Bajaj to Sh. Bhagwan Das Bajaj. However, in the cross-examination workman/WW1 has set-up a new case by stating that previously Sh. Arjun Bajaj was the proprietor of the management and he (workman) was employed by said with Sh. Arjun Bajaj. The workman has not stated in his affidavit Ex. WW1/A that the previous owner Sh. Arjun Bajaj had issued :13: him letter of appointment or that if the same was not issued then he had demanded the same from Sh. Arjun Bajaj.
18. In Para-7 of the affidavit Ex. MW1/A the management has stated that shop no. S-23 , Tent Market, Indra Nagar, Delhi alongwith printing press was purchased by Sh. Yogesh and said Sh. Yogesh gave the printing press on contract basis w.e.f. 01.03.1996 to 30.04.97 and the documents relating to purchase of shop no. S-23 and machinery of printing press are Ex. MW1/8 collectively. In the cross-examination of MW1 no suggestion has been given to the effect that Sh. Yogesh had not purchased the shop no. S-23 alongwith machinery installed therein as stated in Para-7 of the Affidavit Ex. MW1/A and that the documents Ex. Mw1/8 are forged and fabricated documents. The workman/WW1 also admitted in the cross-examination that the printing press was previously working in shop no. S-23, Tent Market, Indra Nagar, Delhi. Although in the statement of claim and in his affidavit EX. WW1/A the workman has nowhere stated that previously the printing press was working at S-23, Tent Market, Indra Nagar, Delhi but in the cross-examination the workman/WW1 admitted that previously it was functioning in S-23, Tent Market, Indra Nagar, Delhi. In Para-8 of the affidavit Ex. MW1/A , the :14: management has stated that on 12.05.97 , MW1 Sh. Bhagwan Das Bajaj purchased the shop no. S-29, Tent Market, Indra Nagar, Delhi and said Sh. Yogesh shifted the machinery of printing press in the shop no.S-29, Tent Market, Indra Nagar, Delhi. The workman/WW1 also admitted in cross- examination that Sh. Bhagwan Das Bajaj /MW1 had purchased the shop no.S-29, Tent Market, Indra Nagar, Delhi. on 12.05.97 and thereafter, the printing press was shifted to Shop N0. S-29, Tent Market, Indra Nagar, Delhi. The workman has not proved that prior to purchase of shop no.S-29, Tent Market, Indra Nagar, Delhi by Sh. Bhagwan Das Bajaj on 12.05.97 he (workman) had any dealings with Sh. Bhagwan Das Bajaj. In Para-3 of the P.O. of WS management has stated that Sh. Bhagwan Das Bajaj was already in government job and he retired on 31.01.2001. In reply to Para-3 of the P.O. of the WS, workman has denied that Sh. Bhagwan Das Bajaj had been/was in government job or he retired on 31.01.2001 from the said job and in the cross-examination workman/WW1 admitted that Sh. Bhagwan Das Bajaj was a government employee . However, thereafter workman/WW1 stated in cross-examination that he does not know whether he retired on 31.01.2001. The management has filed copy of the office order dt. 07.08.2000 issued by the Deputy Director of the Education, :15: District- Central, New Delhi Ex. MW1/13, as per which Sh. Bhagwan Das Bajaj shall retire from government service w.e.f. 31.01.2001 (AN) on attaining the age of superannuation i.e 60 years. The office order Ex. MW1/13 has remained unchallenged. On one hand the workman has neither pleaded nor proved that since when he came into the employment of Sh. Bhagwan Das Bajaj and on the other hand it has been proved on record that Sh. Bhagwan Das Bajaj was in government employment and he retired from service on 31.01.2001 and on account of his being in the government employment he was not permitted to carry any commercial activity. These circumstances negate the contention of workman of having taken employment under Sh. Bhagwan Das Bajaj prior to his retirement.
19. The plea of the management is that the workman had taken printing press on contract basis from Sh. Yogesh Bajaj who was owner of the said press after having purchased the same on 17.01.94 vide documents Ex. MW1/8 collectively and at that time the printing press was in Shop No. S- 23, Tent Market, Indra Nagar, Delhi and thereafter Shop No. S-29, Tent Market, Indra Nagar, Delhi was purchased by Sh. Bhagwan Das Bajaj on 12.05.97 and Sh. Yogesh Bajaj shifted machinery of press in the Shop No. S-29, Tent Market, Indra Nagar, Delhiand the claimant continued to :16: work on contract basis with Sh. Yogesh. The management has filed on record one visiting card Ex. MW1/2 of Bajaj Printers, Shop No. 23, Tent Market, Indra Nagar, Delhi and the said visiting card Ex. MW1/2 bears name of Pandit Charanjit and Yogesh Bajaj in that order from top to bottom. In the visiting card Ex. MW1/2 the name of Pandit Charanjit has been printed on the top and below his name , the name of Sh. Yogesh Bajaj is printed. Workman/WW1 admitted in the cross-examination that the visiting card Ex. WW1/M1,(Ex. MW1/2) was got printed by him. In the cross-examination of MW1 a suggestion was given to the effect that claimant Sh. Charanjit was not a contractor but he was working as his employee on that account visiting card Ex. MW1/2 was printed thereby including the name of his son Yogesh Bajaj, which was denied by MW1. The workman has not explained if visiting card Ex. MW1/2 was printed wherein his name was mentioned then why he did not get his designation printed below his name in order to show that he was not independently dealing with the business of management and he was dealing with the persons to whom visiting cards were given as employee of the management. The visiting card Ex. MW1/2 does not prove that the claimant was representing himself to be the employee of the :17: management. Another plea of the management is that the claimant has also taken a sum of Rs. 8,000/- ( Rupees eight thousand only) from Sh. Bhagwan Das Bajaj for purchasing the ink and paper for his printing business and the claimant acknowledged the same by executing a document to this effect which is Ex. WW1/M12. The workman/WW1 admitted in the cross-examination that Ex. WW1/M12 bears his signature at point A. Thereafter, the workman/WW1 voluntarily stated in the cross- examination that his signatures were taken on the same forcibly in order to terminate his services. Workman/WW1 further stated in the cross- examination that he had not made any complaint to any authority that he was forcibly made to write and signing at Ex. WW1/M12. The workman/WW1 admitted in the cross-examination that WW1/M12 is in his handwriting and it bears his signature. The workman has nowhere stated in his affidavit Ex. WW1/A that he was made by the management to sign blank documents or he was forced by management to execute any document i.e Ex. WW1/M12. The workman has failed to prove that Ex. WW1/M12 was executed by him under threat or force. On one hand workman/WW1 stated in the cross-examination that he was made to sign Ex. WW1/M12 forcibly but on the other hand workman gave a suggestion :18: to MW1 in the cross-examination to the effect that Ex. WW1/M12 was executed by claimant for making payment on behalf of MW1 in the market, which was denied by MW1. Hence, by giving this suggestion to MW1 in the cross-examination the workman has admitted having executed Ex. WW1/M12 but he has raised the plea that same was executed for making payment on behalf of Sh. Bhagwan Das Bajaj in the market. Ex. WW1/M12 which is in the handwriting of workman and signed by the workman, the workman has stated that he has to give a sum of Rs. 8,000/- to Sh. Bhagwan Das Bajaj which amount he had taken for ink and paper and if he does not make payment of the said amount, he will continue to pay the interest at the rate of 3 % and the interest will be paid every month. The workman has not explained that if he was in the employment of the management then why he had taken a sum of Rs. 8,000/- from Sh. Bajaj for purchase of ink and paper for the printing press business on loan basis because if he (workman) was an employee then he would have been getting only wages from the management and he was not expected to incur expenditure on the business of management by purchasing ink and paper. The contention of AR for workman that Ex. WW1/M12 is not properly stamped and cannot be looked into has no force as WW1/M12 is not a receipt :19: but it is merely an acknowledgment of loan which workman has undertaking to return to Sh. Bajaj.
20. In order to prove that the claimant was doing work of printing press on contract basis the management has also relied on Ex. WW1/M1 to Ex. WW1/M11 (Ex. MW1/12 collectively) which are invoices/bills containing details of the goods/articles purchased for the business of management. The invoices /bills Ex. MW1/12 collectively bear signature of workman. In the cross-examination of MW1 a suggestion was given by the workman to the the effect that Ex. MW1/12 collectively are the document in respect of payments made on his (MW1) behalf by claimant and the said documents were kept by MW1 for record purposes. Hence by giving this suggestion to MW1 in the cross-examination the workman has raised the plea that the payments in respect of invoices / bills Ex.MW1/12 (collectively) by which goods were purchased for the business of management, the claimant had made payments of the said goods/articles but the said payments were made by claimant on behalf of Sh. Bhagwan Das Bajaj. The claimant has not explained that if he was merely an employee of the management and was working only as a printing man then why he was making payments in respect of the good :20: which have been purchased for the business of the management. The making of payments by claimant in respect of the goods/articles purchased for the business of management belies the claim of the claimant that he was in the employment of management. Apart from his affidavit Ex. WW1/A and his oral testimony, the workman has not adduced any other evidence in order to prove that he was employed with the management. The contention of AR for workman is that the management has not proved such records which will prove that the workman was working as contractor with the management.
21. In the case of Bank of Baroda vs. Ghemarabhai Harjibhai Rabari, 2005 LLR 443 the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case it would be the responsibility of the Management to rebut the same.
22. In Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT :21: 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated 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 daily waged earner, 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 (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. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman :22: to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be-the ground for the tribunal to draw an adverse inference against the management."
23. In Ravi N. Tikoo v. Deputy Commissioner (S.W.) & Ors. 2006 II AD (DELHI) 560 our own Hon'ble High Court observed as under:
37 "At this stage, it becomes necessary also to know that extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator.
Such issue can be examined in the light of the provisions of Order 8 Rules 5 & 10 of the Code of Civil Procedure and the principles of law laid down thereunder.
Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favour of the workman. However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears.
The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and :23: evaluate the same and be satisfied that the case set up by the claimant has been adequately established.
It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence.
38. In this behalf in (2005) 5SCC 100 entitled Manager, Reserve Bank of Bangalore vs. S. Mani & Others, the Apex Court observed thus:-
"Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event, the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness . Only by reasons of non-response to such letters, the contents thereof would not stand admitted. The Evidence :24: Act does not say so."
24. As per aforesaid discussions, the workman has not adduced any evidence on record to prove that he was in the employment of management. The workman has failed to even prima-facie prove that he was in the employment of management so that the onus could be shifted on the management to rebut the claim of the workman that he has been in the employment of management. Moreover, in the cross-examination the workman/WW1 stated that he was employed by Sh. Arjun Bajaj who is younger brother of Sh. Bhagwan Das Bajaj and no such plea was raised by workman in the statement of claim or in the affidavit Ex. WW1/A which has been filed by the workman. The workman has also not given any suggestion to MW1 in the cross-examination to the effect that the workman was employed by Sh. Arjun Bajaj who was previous owner of the management and thereafter control of the management was acquired by Sh. Bhagwan Das Bajaj and the services of the workman stood transferred under the supervision and control of Sh. Bhagwan Das Bajaj on the same terms and conditions. The workman has not adduced any evidence in the form of receipt of salary/wages or record of his engagement or employment to prove that he has been in the employment of management :25: for the period as alleged. Moreover, in the statement of claim and affidavit Ex. WW1/A workman has stated that his services were terminated by management on 27.07.2001 but in the statement of claim Ex. WW1/M2 which was filed before the conciliation officer the workman has stated that his services were terminated on 30/12/2000. If the date of alleged termination of service of workman i.e. 30.12.2000 as stated in Ex. WW1/M2 is taken as correct then the workman was not in the employment of management on 27.07.2001 ( the alleged date of termination of services as mentioned in statement of claim and affidavit Ex. WW1/A). In the circumstances, as the services of workman stood terminated on 30.12.2000 (as stated in Ex. WW1/M2) then there was no question of termination of service of workman on 27.07.2001 as pleaded in the present case. The workman has failed to prove that there existed relationship of employer and employee between the parties. This issue is answered, accordingly.
ISSUE NO.2
25. In findings on Issue No. 1 above, it has been held that the workman has failed to prove that there existed relationship of employer and employee between the parties. As there was no relationship of employer :26: and employee between the parties, hence there is no question of termination of services of workman illegally and /or unjustifiably by the management. Consequently, the workman is not entitled to any relief. Reference stands answered accordingly. Copies of award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 16.05.2008 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI :27: