Delhi District Court
Through vs ) Shri Kunal Sehgal on 26 July, 2023
Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER : LABOUR COURT - 08
ROUSE AVENUE DISTRICT COURTS : NEW DELHI
LID No. 451/19
CNR No. DLCT13-003061-2019
In the matter of:
Shri Durga Prasad
S/o Shri Sukhraj Ram
R/o FK-15, Shastri Nagar,
Delhi - 110052
Through:
Shri Mohan Chand Joshi (General Secretary)
Rashtriya General Kamgar Mazdoor Union (Regn. No.326),
Seat No.11A, Near Treasury Gate,
Tis Hazari Court, Delhi - 110054
... Workman
Versus
1) M/s S.D. Nanda & Sons
50, Shradha Nand Marg, G.B. Road,
Delhi - 110006
2) M/s K-Tech Automation
50, Shradha Nand Marg, G.B. Road,
Delhi - 110006
Proprietor/Partner
1) Shri Kunal Sehgal
S/o Shri Pradeep Sehgal
2) Smt. Neelu Sehgal
W/o Shri Pradeep Sehgal
R/o E-14, Grater Kailash-I,
New Delhi - 110048
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Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019
3) Smt. Meenu Malhotra
W/o Shri Atul Malhotra
R/o D-70, Defence Colony
New Delhi - 110024
4) Smt. Seema Mehra
W/o Shri Sunil Mehra
R/o 67/10, New Rohtak Road
New Delhi - 110005
...Management
Date of Institution : 18.07.2019
Date of Award : 26.07.2023
AWAR D
1. Shri Durga Prasad has filed statement of claim asserting
continuous employment with management in the post of 'Helper'
since 1974. It is submitted that earned wages of November and
December 2017 were not paid to the workman by LRs of Late
Shri B.M. Nanda - namely Shri Kunal Sehgal, Smt. Neelu
Sehgal, Smt. Meenu Malhotra and Smt. Seema Mehra on the
pretext of dispute between the siblings and he was wrongly
removed from service on 01.11.2018 without paying earned
wages from 01.11.2017 till 31.12.2017.
2. Demand letter dated 11.05.2018 seeking reinstatement
with back wages was neither replied nor complied whereas
settlement could not be effected before Conciliation Officer,
Central District, Pusa Campus Delhi. Shri Durga Prasad has
thereafter filed statement of claim under Section 2A of the
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Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019
Industrial Disputes Act (hereinafter referred as 'I.D. Act') on the
basis of 'Failure Report' advising him to file claim before the
Labour Court.
3. It is submitted that services of Shri Durga Prasad have
been terminated in violation of Section 25F of I.D. Act without
any notice, service compensation and one month salary in lieu of
notice and workman being unemployed since the date of illegal
termination of service is entitled to be reinstated with continuity
of service and all attendant benefits including back wages.
4. Ms. Neelu Sehgal has filed separate written statements,
one as LR of Late Brij Mohan Nanda, Proprietor M/s S.D. Nanda
& Sons and the other as Proprietor M/s K-Tech Automation
seeking dismissal of claim inter alia on following grounds:
i. M/s S.D. Nanda & Sons and M/s K-Tech Automation
are separate legal entities and have not privity of trade
or any other relationship with each other.
ii. M/s S.D. Nanda & Sons was proprietorship concern of
Late Brij Mohan Nanda having TIN No. 07020005020
and no commercial activity is being carried by any of
the LRs of Late B.M. Nanda after his death on
07.12.2016 which is verified by letter dated 27.02.2018
sent to Value Added Tax Officer (VATO) through speed
post and was duly delivered to the VAT Department,
New Delhi on 01.03.2018.
iii. M/s S.D. Nanda & Sons has closed down its business in
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Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019
December, 2016 after the death of Shri Brij Mohan
Nanda and no activity whatsoever is being carried by
any of his successor/daughter/legal heirs after the death
of Shri Brij Mohan Nanda.
iv. Services of Shri Durga Prasad were not terminated by
management rather it came to an end due to closure of
business of management No.1.
v. Shri B.M. Nanda having left for his heavenly abode on
07.12.2016 is survived by three daughters namely Smt.
Neelu Sehgal, Smt. Meenu Malhotra and Smt. Seema
Mehra and none of his LRs has carried on the business
under name and style of S.D. Nanda & Sons.
vi. Statement of claim based on false, frivolous, vexatious
and concocted allegations is liable to be dismissed with
exemplary cost.
vii. Ms. Neelu Sehgal being proprietor of M/s K-Tech
Automation having D-VAT and Central Sales Tax
(CST) Registration No.07380333749; Importer-
Exporter Code (IEC) No.0507061179 & Provisional
GST ID No.07AAYPS9488G1ZH is operating from
mezzanine floor of 50, Shradha Nand Marg, GB Road,
Delhi-110006 since 15.09.2007 and her son Shri Kunal
Sehgal is looking after the day-to-day affairs of M/s K-
Tech Automation employing two persons whose
monthly wages are being paid vide vouchers.
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LID No.451/2019
viii. No material or documentary evidence has been
adduced or filed by the workman to prima facie show
existence of any employer-employee relation with
management No.2 M/s K-Tech Automation.
ix. Workman claiming employment since 1974 in all
probability is telling blatant lies as M/s K-Tech
Automation came into existence in the year 2007.
5. Ms. Meenu Malhotra and Ms. Seema Mehra impleaded as
respondents No.3 & 4 have filed separate reply seeking dismissal
of claim on the ground of mis-joinder of parties by contending that they were never part of management No.1 & 2 and have no knowledge of allegations leveled in the statement of claim.
6. Following issues were settled on 30.03.2022 on the basis of pleadings:
i. Whether services of workman Shri Durga Prasad S/o Shri Sukh Raj have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect? ...OPW ii. Whether claim is liable to be dismissed in the absence of employer-employee relationship between claimant and management No.1 and 2? ...OPM 1&2 iii. Relief.
7. Shri Durga Prasad having reiterated his averments in affidavit Ex.WW1/A has relied upon following documents in his Page 5 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019examination-in-chief recorded on 06.08.2022:
i. Photocopy of demand notice dated 11.05.2018 addressed to management - Ex.WW-1/1(OSR). ii. Photocopy of postal receipts - Ex.WW-1/2 to Ex.WW1/5(OSR).
8. Cross-examination of workman by Shri Anil Kumar Gupta for Ms. Neelu Sehgal has been recorded on 06.08.2022 whereas Shri Ajit Kumar Gola for Ms. Meenu Malhotra and Ms. Seema Mehra has cross-examined WW1 Shri Durga Prasad on 31.10.2022.
9. Shri Kunal Sehgal, Authorized Representative of Ms. Neelu Sehgal examined as MW1 has tendered affidavit Ex.MW1/A disputing termination of service of Shri Durga Prasad on 01.11.2018 by relying upon following documents in his examination-in-chief recorded on 09.01.2023:
i. Award/judgment dated 28.07.2018 passed by Shri Umed Singh Grewal, Ld. POLC-XVII, Dwarka Courts in LIR No.372/18 - Ex.MW-1&2/1.
ii. Examination and cross-examination of M1W1 Shri Ram Naresh Sharma, Record Keeper, Ward-26, Trade & Taxes Department, Vyapar Bhawan, I.P. Estate, New Delhi recorded in LIR No.372/18 on 04.07.2018 - Ex.MW-1&2/2.
iii. Letter dated 27.02.2018 sent to Department of Trade & Tax by Ms. Neelu Sahgal informing death of Shri Brij Mohan Nanda - Ex.MW-1&2/3.
iv. Dealer's profile of M/s S.D. Nanda for the year 2016-17 Page 6 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.LID No.451/2019
- Ex.MW-1&2/4.
v. DP1 Details of M/s S.D. Nanda & Sons - Ex.MW- 1&2/5.
vi. Examination and cross-examination of Shri Kunal Sahgal recorded on 13.07.2018 in LIR No.372/18 - Ex.MW-1&2/6.
vii. Death certificate of Shri Brij Mohan Nanda - Ex.MW- 1&2/7.
viii. Attendance Register of M/s S.D. Nanda & sons - Ex.MW-1&2/8 - (41 pages).
ix. Examination and cross-examination of Shri Jagdish Narain recorded on 04.07.2018 in LIR No. 372/18 - Ex.MW-1&2/9.
x. Edit report of IEC No. 0507061179 of K. Tech Automation - Ex.MW-1&2/10.
xi. Copy of Certificate of Importer-Exporter Code (IEC) of K-Tech Automation - Mark 'A'.
xii. Examination and cross-examination of Shri Ram Naresh Sharma recorded on 04.07.2018 in LIR No. 372/18 - Ex.MW-1&2/12.
xiii. Dealer's profile of K-Tech Automation - Ex.MW- 1&2/13.
xiv. Dealer's profile details of K-Tech Automation - Ex.MW-1&2/14.
xv. Copy of Form DVAT-06 of K-Tech Automation - Mark 'B'.
xvi. Copy of Certificate of Registration under CST Act of Page 7 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.LID No.451/2019
K-Tech Automation - Mark 'C'.
10. Cross-examination of MW-1 has been recorded and management evidence was closed on 09.01.2023.
11. Shri Mohan Chand Joshi for workman; Shri Anil Kumar Gupta for Ms. Neelu Sehgal AND Shri Ajit Kumar Gola for Ms. Meenu Malhotra & Ms. Seema Mehra have filed their written submissions.
12. I have carefully perused pleadings, evidence and written submissions filed on judicial record.
13. Shri Durga Prasad having approached the Court alleging termination of service on 01.11.2018 has unevenly deposed of having worked with M/s S.D. Nanda & Sons till March, 2017 during cross-examination recorded on 06.08.2022. Relevant portion of cross-examination of WW1 Shri Durga Prasad is extracted below:
"It is correct that Shri B.M. Nanda, Proprietor of M/s S.D. Nanda & Sons expired on 07.12.2016. I worked in M/s S.D. Nanda & Sons till March, 2017. It is wrong to suggest that I did not work with M/s S.D. Nanda & Sons till March, 2017. It is further wrong to suggest that after the death of Shri B.M. Nanda, the business was never opened."
14. Management having controverted termination of service on 01.11.2018 has relied upon finding recorded by Ld. POLC-XVII, Dwarka Courts, New Delhi in Award dated 28.07.2018 passed in Page 8 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019LIR No. 372/18 titled "Shri Mohan Lal Vs. M/s S.D. Nanda & Sons". Para '17' of Award dated 28.07.2018 passed in LIR No. 372/18 referred as Ex.MW1&2/1 reads as under:
"17. In view of above discussion, it is held that the management No.1 has closed down its business in December 2016 after the death of its proprietor Mr. Brij Mohan Nanda."
15. The fact that Shri Durga Prasad being employee of M/s S.D. Nanda & Sons had been receiving salary from management No.1 and no salary was received from management No.2 M/s K- Tech Automation is established from following extracts of cross- examination of WW1 Shri Durga Prasad by Shri Anil Kumar Gupta recorded on 06.08.2022:
"It is correct that monthly salary/ wages was being paid by M/s S.D. Nanda & Sons. Monthly wages have not been paid to me after the death of Shri B.M. Nanda, Proprietor M/s S.D. Nanda & Sons. It is wrong to suggest that monthly wages were not paid as proprietorship concern did not carry any business after the death of Shri B.M. Nanda in December 2016.
.... It is further correct that I have not received any salary from M/s K-Tech Automation."Page 9 of 18
Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/201916. Contention of the workman that he was working with management No.2 M/s K-Tech Automation does not inspire confidence as no salary was ever received from management No.2 and no incidental or ancillary record including attendance, salary register or leave record has been adduced in evidence to prove that Shri Durga Prasad continued to work with M/s K-Tech Automation after management No.1 had closed down its business in December 2016.
17. Alleged termination of service on 01.11.2018 is also negated by testimony of WW1 who has candidly deposed about monthly salary/wages received from M/s S.D. Nanda till the death of proprietor Shri Brij Mohan Nanda and admitted to have not worked in M/s K-Tech Automation after the death of Shri B.M. Nanda in December, 2016.
18. Ld. POLC-XVII, Dwarka Courts, New Delhi after going through evidence adduced in LIR No.372/18 including (i) Dealer's Profile of M/s S.D. Nanda & Sons; (ii) DP1 Details of M/s S.D. Nanda & Sons; (iii) Death certificate of Shri Brij Mohan Nanda; (iv) Attendance Register of M/s S.D. Nanda & Sons; (v) examination and cross-examination of Shri Jagdish Narain recorded on 04.07.2018; (vi) Edit report of IEC No. 0507061179 of K. Tech Automation; (vii) copy of Certificate of Importer-Exporter Code (IEC) of K-Tech Automation; (viii) examination and cross-examination of Shri Ram Naresh Sharma recorded on 04.07.2018 qua (a) letter dated 27.02.2018 received from Ms. Neelu Sehgal informing death of Mr. Brij Mohan Nanda, (b) last VAT return of M/s S.D. Nanda & Sons filed for Page 10 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019Tax period 01.07.2016 to 30.09.2016, (c) DP1 details (d) Form DVAT-06 AND (e) Certificate of Registration of M/s K-Tech Automation has returned his finding that M/s S.D. Nanda & Sons being proprietorship of Shri B.M. Nanda was doing its business from ground floor of premises No. 50, Shradha Nand Marg, GB Road, Delhi-06 whereas M/s K-Tech Automation being proprietorship of his daughter Ms. Neelu Sehgal was carrying its business from the first floor of the same building. It was also held that management No.1 established in 1957 and management No.2 established in 2007 were filing separate returns and are therefore separate and distinct entities having nothing common except that both are headed by father and daughter respectively.
19. It is well settled principle of law that person who sets up a plea of existence of employer-employee relation is required to adduce cogent evidence for discharging the burden as held by Hon'ble Supreme Court of India in paras 47 to 49 of Workmen of Nilgiri Co-operative Marketing Society Vs. State of Tamil Nadu and Ors. (2004) 3 SCC 514 :
47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.
48. In N.C. John Vs. Secy, Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, the Kerala High Court held:Page 11 of 18
Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.LID No.451/2019
The burden of proof being on the workmen to establish the employer- employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-
employee relationship.(emphasis
supplied)
49. In Swapan Das Gupta Vs. The First
Labour Court of West Bengal it has been held:
Where a person asserts that he was a workmen of the Company, and it is denied by the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company but of some other person. (emphasis supplied).
20. Similar observations have been recorded by Hon'ble High Court of Delhi in para '31' of its judgment delivered in Ravi N. Tikoo Vs. Deputy Commissioner (S.W.) & Ors. 2005 SCC OnLine Del 1416 to the effect:
"31. It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who Page 12 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.LID No.451/2019
asserts must prove. Based on the rule of Roman Law --'ei incumbit probatio, qui dicit, non qui negat'-- the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman. The workman can discharge the same by leading cogent and reliable evidence in respect thereof which could be oral or documentary. In the event of non-availability of the same, he can very well cause the same to be summoned from the authorities concerned or the management itself and place the same before the industrial adjudicator."
21. Aforesaid principle of law has been reiterated by Hon'ble High Court of Delhi in 'Automobile Association Upper India Vs. P.O. Labour Court-II and Anr. (2006) 130 DLT 160':
"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 Page 13 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.LID No.451/2019
fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and cause the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favor of the workman."
22. Employer-employee relation between Shri Durga Prasad and management No.2 M/s K-Tech Automation could not be established in the absence of cogent and reliable evidence including attendance-cum-salary register and leave record to prove employment in M/s K-Tech Automation.
23. Workman Shri Durga Prasad having contradicted himself by deposing to have worked with management till March, 2017 as opposed to alleged of termination of service on 01.11.2018 has not led any evidence to prove 240 days of continuous service with employer in the preceding year before 01.11.2018.
24. It is well settled law that onus and burden to establish continuous employment for 240 days in the year preceding termination of service is upon the workman and mere affidavit tendered in evidence is not sufficient to prove 240 days of Page 14 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019continuous service as held by Hon'ble Supreme Court of India in Range Forest Officer Vs. S.P. Hadimani (2002) 3 SCC 25.
"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 this 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. 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....."
25. Aforesaid principle of law has been reiterated by Hon'ble Apex Court in later judgments titled Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 SCC 195; Surendernagar District Panchayat Vs. Dahiyabhai Amarsinh (2005) 8 SCC 750; Manager, Reserve Bank of India Bangalore Vs. S.Mani & Page 15 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019Ors. (2005) 5 SCC 100; R.M. Yellatti Vs. Assistant Executive Engineer (2006) SCC 106 AND Mohd. Ali Vs. State of Himachal Pradesh & Ors. (2018) 15 SCC 641.
26. Para 6 of judgment of Hon'ble Supreme Court of India in "Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another" (2004) 8 SCC 161 being relevant is extracted herein below:
"It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed."
27. Similar observation regarding burden of proof recorded in Page 16 of 18 Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/2019para 17 of judgment of Hon'ble Supreme Court of India in "Surendernagar District Panchayat Vs. Dahyabhai Amarsinh"
(Supra) is reproduced below for reference:
"More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan, Municipal Corporation, Faridabad vs. Siri Niwas and M.P. Electricity Board vs. Hariram this Court has reiterated the principal that the 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 from examining himself to prove the factum of his being in employment of the employer."
28. Workman Shri Durga Prasad having failed to establish 240 days of continuous service before he was allegedly removed from service on 01.11.2018 is not entitled to benefits provided under Section 25F of I.D. Act.
29. The fact that management No.1 M/s S.D. Nanda & Sons was abruptly closed in December 2016 after the death of proprietor Shri B.M. Nanda on 07.02.2016 has not been denied and workman has failed to adduce cogent or reliable evidence to establish employer-employee relationship with management No.2 M/s K-Tech Automation.
Page 17 of 18Shri Durga Prasad Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.451/201930. Issue No.1 & 2 are therefore decided against Shri Durga Prasad in the absence of evidence to establish 240 days of continuous service with management before alleged termination of service on 01.11.2018.
RELIEF
31. Statement of claim under Section 2A of I.D. Act, 1947 seeking reinstatement with back wages is therefore dismissed.
32. Copy of Award be sent to Joint Labour Commissioner, North District, Nimri Colony, Ashok Vihar, Phase-IV, Delhi for publication.
33. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT DATED: 26.07.2023 Digitally signed by TARUN TARUN YOGESH YOGESH Date:
2023.07.28 15:09:09 +0530 (TARUN YOGESH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS:
NEW DELHI Page 18 of 18