Delhi District Court
Through vs M/S. N.K. Bagrodia Global School on 20 October, 2022
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 7752/16 CNR No. DLCT13-004433-2016
Sh. Lalit Kumar
S/o Sh. Umed Singh
R/o 21, Village & P.O. Jharoda Kalan
Delhi-110072
Through:
Delhi General Workers Union (Regd.)
D-195, Karampura, Shivaji Marg
New Delhi-110015 ......Workman
Versus
1. M/s. N.K. Bagrodia Global School
Sector-17, Dwarka, Phase-II
New Delhi-110078
2. M/s. Swift HRD Management Services
BA-42/A, Phase I, Ashok Vihar
Delhi-110052 ......Management
Date of Institution : 05.04.2016
Date of Award reserved on : 20.10.2022
Date of Award : 20.10.2022
LIR No. 7752/16
Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 1 of 29
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 R/W GOVT. OF NCT OF DELHI,
LABOUR DEPARTMENT NOTIFICATION NO.
F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Deputy Labour Commissioner, District SouthWest, Govt. of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim was filed by the workman submitting that he was appointed as "Driver" by management no. 1 on 22.07.2013 and no appointment letter was given. His last drawn wages were Rs.12,000/- per month. He used to drive school bus bearing registration no. DL-1PC-5840. In the first week of July 2014 the management took signature and thumb impression of the workman on printed forms/blank papers without disclosing the nature. When workman asked about purpose of taking signature and thumb impression then management has LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 2 of 29 replied that they have made a temporary arrangement with one Security Services/management no. 2 to get workman covered under ESI/PF scheme. This change from 01.07.2014 was without consent of the workman. On 06.07.2015 workman came to know that his service record was manipulated by management no. 1 so that it appears on record that workman is employee of management no. 2. On coming to know this the workman had approached the Manager and made his oral objection and made demand of restoration of his service with management no. 1. On this management got annoyed and had illegally terminated the service of the workman on 07.07.2015. The management has denied statutory benefits from retrospective effect with minimum wages, leave etc. and his wage slip and attendance card was also not prepared. From 22.07.2013 till 07.07.2015 workman has worked to the entire satisfaction of the management. Despite service of demand notice dated 09.11.2015 by speed post the workman was not reinstated nor the management replied to the demand notice. The management was adamant at conciliation centre and no settlement was arrived. Earned wages of the workman from June 2015 and for a period of seven days for the month of July 2015 was illegally withheld by the management. Workman is unemployed since 07.07.2015 from the date of his illegal termination.
LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 3 of 29Accordingly it is prayed that that his service may be reinstated with full back wages and consequential benefits and Award may be passed against both the managements jointly and severally.
3. In the written statement filed by the management no. 1 it is submitted that management no. 2 has employed the workman and it is only engaging the service of the workman through management no. 2 only. The wage and statutory benefits are paid by management no. 2 only. It is sole discretion of said management no. 2 to change/rotate the posting and transfer of the workman. There is no relationship of employer and employee with management no. 1. There is no privity of contract between the parties and there is misjoinder of parties. No demand notice was served on the management no. 1. The workman has enjoyed ESI and EPF facility with management no. 2. Bus belongs to management no. 1. The authority letter issued by transport department whereas the transport department never verifies the relationship between employer/employee, the driver and the bus owner. Signature and thumb impression of workman was never taken on blank pages. The management no. 1 has never terminated the service of the workman. Accordingly it is prayed by management no. 1 that the claim of the workman may be LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 4 of 29 dismissed.
3.1 It is submitted on behalf of management no. 2 in the written statement that it is a contractor who is providing human resource service to different institutions. It is also providing services to management no. 1 and the supervision, assignment of work to such employees independent of any interference by management no. 1. The salary was paid by management no. 2 only with right to change the place and time of duty of the workman. The service of the workman is only on contractual basis for a limited period and which is not permanent. The management no. 2 had engaged the workman on contract basis only till 31.05.2015. The workman had joined the management no. 2 on 22.07.2013 for a limited tenure. When the tenure has expired than there is no financial liability and obligation of the management. No demand notice was served on management no. 2. The tenure of the workman has ended on 31.05.2015 and there is no question of making any payment after this date. The ESI and EPF are enjoyed by the workman. The salary were paid to the workman through account no. 542902010011495 with Union Bank India, Maya Enclave branch, New Delhi-110088. The management no. 2 holds ESIC record of the workman vide insurance no. 2213949992 and vide EPF No. DL/29914/451. Signature of workman was never LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 5 of 29 taken on blank paper for which workman has never complained before any authority. The service of workman was never terminated which had expired on 31.05.2015. Other claims of the workman are generally denied. Accordingly management no. 2 has submitted that claim is false and same may be dismissed.
4. In rejoinder to the written statement of management no. 1 it is submitted by the workman that the post of driver of commercial vehicle of the school is perennial in nature and therefore Contract Labour (Regulation and Abolition) Act, 1970 does not apply. The management no. 1 never registered with Govt. of NCT of Delhi for the purpose of engagement of contractor. The management no. 1 must have given an undertaking to the transport department that the workman is their employee only thereafter the authorization card was issued. It is submitted that from 22.07.2013 to 22.07.2014 the workman used to get wages in cash from management on payment vouchers and thereafter the wages were directly paid in his bank account. Fraud is played upon the workman. The workman could not file complaint against management no. 1 for the fear of losing his job.
4.1 In rejoinder to the written statement of management no.
LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 6 of 292 it is submitted by the workman that there was no arrangement between management no. 1 and management no. 2 regarding human resources. The management no. 2 has never supplied drivers to any establishment till date and if may be exclusively dealing in supplying of administrative staff, skilled and unskilled labour, peons, security and housekeeping services. Management no. 1 never informed the workman that he was covered under ESI and no ESI card was provided to him.
5. On the pleadings of the parties and averments made following issues are framed in the reference on 23.02.2017:
1. Whether there existed relationship of employer and employee in between the workman and management no.
1? OPM1
2. Whether the workman was an employee on contract basis, if so, to what effect?
3. In terms of reference.
Whether the services of workman 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
4. Relief.
LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 7 of 296. The sole witness of the workman is WW-1 who is workman himself and workman relied upon the documents are Ex.WW1/1 to Ex.WW1/4 and on separate statement of workman WE was closed on 09.01.2019. The management has examined two witnesses on behalf of management no. 1 and 2 which are MW- 1/Ms. Jaishree Nawani and MW-2/Sh. Sanjeev Kumar. Vide separate statement of AR for management, ME was closed on 04.10.2019.
7. Final arguments are heard and record perused.
8. The issue-wise findings are as follows:-
9. ISSUE NO. 11. Whether there existed relationship of employer and employee in between the workman and management no. 1? OPM1
9.1 It is deposed by WW-1 vide evidence by way of affidavit Ex.WW1/A that no letter of appointment was issued to him. He used to drive the school bus vide registration no. DL-1PC-5840 pertaining to management no. 1. The CNG leakage test and safety LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 8 of 29 check certificate is Ex.WW1/1. He was issued authorisation card by transport department Ex.WW1/2. The school/management had made temporary arrangements with management no. 2 to get him covered under ESI/PF schemes similar to other employees. His service record was changed subsequently after 01.07.2014 by management no. 1 by transferring his employment to management no. 2. Management no. 1 has asked the deponent to sign and put thumb impression on various blank papers without disclosing the sense of these documents. He believed that the act of management was bonafide and without going through the contents of the printed materials he has signed and put thumb impression. He never gave consent to change his employer. On 06.07.2015 the workman came to know that his service record was manipulated in such a manner that management no. 2 appears to be employer of the workman w.e.f 22.07.2014. The workman went to Manager and raised his objections on which the management got annoyed and illegally terminated his service on 07.07.2015. His service was not reinstated despite service of demand notice dated 09.11.2015 Ex.WW1/3 and speed post receipt of which are Ex.WW1/4. Hence cheating is done on workman jointly and severally by both the management. In the authorisation card from the transport department management no. 1 had given undertaking that the LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 9 of 29 workman is employee of management no. 1. It is deposed by MW- 1 in evidence by way of affidavit vide Ex.MW1/A that it is engaging service of management no. 2 for duties at different place in its premises. The wages and statutory benefits are only paid by management no. 2. Hence the relationship of employee and employer is only between the workman and management no. 2. The workman was appointed on contract basis on 22.07.2014 to 31.05.2015 who was deployed with management no. 1 as bus driver. The requirement letter is Ex.MW1/1. The control and supervision is only with management no. 2 and duties are assigned by management no. 2. Reply was given before Conciliation Officer is filed on 07.12.2015 which is Ex.MW1/2=Mark A. 9.2 However suggestion is given to MW-2 at page 2 of cross-examination that signatures of workman was taken on blank papers on document Ex.MW2/WX1, Ex.MW2/WX2 and Ex.MW2/WX3. It is admitted by MW2 that original appointment letter Ex.MW2/3=Ex.MW2/WX4 is still available with the management only and not with the workman. Ex.MW2/WX1 and Ex.MW2/WX2 are filed in photocopy and it is deposed by MW-2 that it cannot produce the original documents of the above exhibits. MW-2 cannot say about handwriting which is appearing on LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 10 of 29 Ex.MW2/WX2 now Ex.MW2/WX1 to Ex.MW2/WX3. Original of which are not produced by the management on record. The workman has deposed that his signatures were taken on blank papers. However the above documents prima facie appears as performa documents in which the particulars are already written with blank space. Blank spaces are filled in handwriting therefore the documents are not totally blank and it cannot be said that they are same documents which are signed by the workman in blank. However as far as signature of workman on the blank papers are concerned then the liability in this respect is on the workman. The workman has to bear the risk and consequences of signing the document blank. The relevant citation is reproduced hereasunder:
M/s. Grasim Industries Ltd. And ... vs M/s. Agarwal Steel on 20 October, 2009 in the Hon'ble Supreme Court of India in Civil Appeal No. 5994 of 2004 has laid down as under:
We are not going into the details of the impugned judgment except to note that in para 24 of the said judgment it has been stated that the arbitrator did not accept the claimant- respondent's plea that the signatures on Ex.D-8 were only in lieu of receipt. However, the arbitrator addressed himself to the facet whether the admission was erroneous or mistaken or it was conclusive proof of the matter.
In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 11 of 29 money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case. There is no allegation of force or fraud in this case. Hence it is difficult to accept the contention of the respondent while admitting that the document Ex.D-8 bears his signatures that it was signed under some mistake. We cannot agree with the view of the High Court on this question. On this ground alone, we allow this appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for expeditious disposal in accordance with law.
9.3 However the workman has denied the above documents and his employment with management no. 2. The management cannot withheld the original of these documents without any justification and therefore these documents are not proved on record when the signatures on these documents are not put to the workman/WW-1 nor the documents are put to the workman in cross-examination. Hence the above documents cannot be relied upon for the purpose of employment with management no. 2.
9.4 Ex.WW1/1 is the CNG leakage test and safety check certificate. Workman submits that since he was in possession of these documents and getting the test conducted which he was driving therefore it proves he was working with the management no. 1. Workman has relied on Ex.WW1/2 the transport department LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 12 of 29 authorisation card where for driver details of owner are mentioned and name of driver is mentioned Sh. Lalit Kumar who is workman herein. These two documents by itself can at best be corroborative evidence and they are not in the nature of document by which it can be inferred the relationship of employer and employee between the parties. The corroborative evidence given alone is not sufficient to establish the relationship of employer and employee. By this corollary if accepted that the authorization card for driver from transport department can establish the relationship of employer and employee then all the driver would be deemed to be employee of the owner of the vehicle. Hence this as a corollary cannot be accepted. The corroborative evidence is not found with sufficient weight to justify the establishment of relationship of employer and employee between the parties. Hence it cannot be said by these documents that workman is employee of management no. 1.
9.5 It is settled law that the workman has to establish the relationship of employee and employer between the parties and burden of proof of which rest on the workman. The relevant citation is reproduced hereasunder:
The Hon'ble Supreme Court of India in "Workman of Nilgiri Coop. Mkt. Society Ltd. Vs State of Tamil Nadu", reported as AIR 2004 SC 1639 has laid down as under:-LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 13 of 29
"47. It is a well settled principle of law that the person who is set up a plea of existence of relationship of employer and employee, the burden would be upon him.
48. In N.C. John Vs Secretary Thodupuha Taluk Shop and Commercial Establishment Workers' Union and others [1973 Lab. I.C. 398], the Kerala High Court held:
"The burden of proof being on the workman Jai Prakash vs M/s J.K. Sales Corporation 19.12.2019 Page No. 14 of 21 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 employeremployee relationship."
50. The question whether the relationship between the parties is one of the employer and employee is a pure question of the fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the findings is manifestly or obviously erroneous or perverse."
9.6 Ex.WW1/MX1 is the bank statement of the workman for the period from 21.06.2013 till 26.04.2018 pertaining to PNB bank. Another bank statement is Ex.WW1/MX2 of the workman pertaining to Union Bank of India for the period from 06.09.2014 to 06.01.2019. It is deposed by WW1 that he does not know by whom salary was credited in his account as they were issued ATM card from which they were withdrawing their salary from their bank account which was opened by management no. 1. It is argued LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 14 of 29 that cannot be seen that if who used to credit his salary in his bank account. It is to be noted that even when the workman was withdrawing his salary from ATM then he is responsible for the amount received in his account and he is liable to explain it. If the said amount is received as salary then it is regularly received by the workman for the service rendered. In fact the bank account statement is filed by the workman which is one of the relevant piece of evidence to determine his status of employment with management no. 1 which workman did not file but it was filed only when it was asked from him during cross-examination. The workman is presumed to be aware and know that from where he received the amount in his bank account. Moreso when it is received regularly. On 13.05.2014 a sum of Rs.9,727/- was received by way of cheque by way of clearing. Similarly Rs.10,620/- was received by way of clearing on 11.03.2016. Rs.11,000/- was received by clearing on 10.06.2016 and other amounts are also received by way clearing. On the face of it, it means that this amount was received by way of cheque in the account of workman. In Ex.WW1/MX2 it is specifically shown that on date 06.09.2014, 07.10.2014, 07.11.2014 and similarly written upto June 2015 that salary was received in the account of workman. The heading mentions that it is a salary. The heading salary does LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 15 of 29 not on its own come in the entry in the account statement unless the workman has made his account as salary account in Union Bank of India. Therefore workman must have applied in the bank that this account be made as his salary account. The workman has deposed that management no. 2 had got opened his bank account. Workman cannot remain aloof to the fact that the bank account cannot be opened without his signatures and consent. He is liable for the same. There is no substance on record which could be said that management no. 1 had got opened the bank account of the workman statement of which is Ex.WW1/MX2. However management no. 1 denies that there is any employer and employee relationship between the parties. The bank account on the first page mentions that service in private company and the statement is filed by the workman from 06.09.2014. The opening form of bank account is not proved by the workman on record. When the account was opened then the passbook must have been received by the workman or by due diligence he could have obtained it. On the first page of passbook vide Ex.WW1/MX2 the service of private company is shown. Management no. 2 is a private firm. Management no. 1 is a school which is managed privately. The bank statement of the workman does not mention that it is private school but it mentions that it is a private company. The bank LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 16 of 29 account was operating on 06.09.2014 and which was opened before that as the statement is brought forward on that date. Thereby the deposition of the workman is falsified that blank documents were got signed from him on 01.07.2014. As per own averments of the workman, the workman remained silent on 01.07.2014 till 06.07.2015 as to the nature of his employment. It is not disclosed by the workman that how he came to know about the status on 06.07.2015. Without disclosing this fact it could not be ascertained that the workman came to know about this fact only on 06.07.2015. With the opening of bank account vide Ex.WW1/MX2 inference is available against the workman that from where money came in his bank account. The workman has failed to substantiate fraud by management no. 1 as necessary ingredients as to fraud must have been proved on record which are reproduced hereasunder:
Hon'ble Supreme Court of India in case titled General Manager, Electrical ... vs Sri Giridhari Sahu on 12 September, 2019 in Civil Appeal No. 8071 of 2010 has laid down as under:
40. In The Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act', for short), definition of "fraud", is as follows:
"17. 'Fraud' defined.--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 17 of 29 contract:-- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2, or unless his silence, is, in itself, equivalent to speech.
Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."
41. "Misrepresentation" is separately defined in Section 18 of the Contract Act, as follows:
"18."Misrepresentation" defined.-- "Misrepresentation"
means and includes-- (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
42. Section 19 of the Contract Act declares that when consent LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 18 of 29 to an agreement is caused by coercion, fraud or misrepresentation, the agreement is voidable at the option of the person whose consent was so caused. The exception in Section 19, reads as follows:
"Exception --If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence."
43. "Undue influence" is separately defined under Section 16 of the Contract Act, which reads as follows:
"16. 'Undue influence' defined.--(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-
section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)."
44. A perusal of the definition of the word "fraud", as defined LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 19 of 29 in Section 17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with Section 18(1) of the Contract Act which, inter alia, defines "misrepresentation". It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believes it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a statement which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active. It is here that mere silence has been explained in the Exception which would affect the decision of a person who enters into a contract to be not fraud unless the circumstances are such that it becomes his duty to speak. His silence itself may amount to speech. A person may make a promise without having any intention to perform it. It is fraud. The law further declares that any other act fitted to deceive, is fraud. So also, any act or omission, which the law declares to be fraudulent, amounts to fraud. Running as a golden trend however and as a requirement of law through the various limbs of Section 17 of the Contract Act, is the element of deceit. A person who stands accused of fraud be it in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a matter to be judged on the facts of each case. It is, apparently, on account of these serious circumstances that fraud has on a legal relationship or a purported legal relationship that the particulars and details LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 20 of 29 of fraud is required if pleaded in a civil suit or a proceeding to which the CPC applies.
72. The manner in which fraud was perpetuated, the exact nature of the fraud and person or persons by whom the fraud was perpetuated, are found missing in the pleadings, as noticed by us. As far as the first applicant is concerned, the prevarication in his case is palpable and discernible from the somersault that he carried out in the pleading in the application in comparison with his case in the letter, which he wrote seeking to withdraw from the Scheme, on 01.06.2000, wherein the case was built around alleged threat and coercion. It may be noticed that coercion is another element which is antithetical to free consent and is separately dealt with under Section 15 of the Contract Act. He minces no words after employing the expression "threat, coercion", when he declared that being afraid, he was made to sign the VSS against his wish. He was threatened with being forced into dire straits unless he signs the application. Conspicuous by its absence, in his letter dated 01.06.2000, is even the faintest whisper about fraud of any kind. This is the application dated 01.06.2000. It must be noted it is on the very next day after he made the application claiming the VSS on 31.05.2000. The application under Section 33A of the Act, on the other hand, came to be filed much later, i.e., on 19.04.2001, after several months. In the pleading, in paragraph-9 of the application, as to who defrauded amongst the authorities, is not pleaded. It must be noted that the persons arrayed in the application are the General Manager (Electrical); Manager (Electrical); Maintenance Division; Manager (Electrical), Protection and Control Division; Director (HRD) of the Corporation. It is not even mentioned as to who amongst them committed the alleged act of fraud. No doubt, the fraud could be committed by either the opposite parties or anyone action at their behest. If so, it should have been pleaded. There is no such plea forthcoming. The substance of the plea is that for regularization, which we gather, on a liberal reading of the application, being one LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 21 of 29 under the Act and bearing in mind also the need to be not far too strict, enmass signatures of workers were taken on certain papers and by showing undue influence. The pleas of fraud and undue influence are distinct and separate. It will be noticed that the case of coercion and threat does not make its appearance in the pleading.
9.7 The necessary pleadings as to fraud and its ingredients are absent as to specific date, month and year and merely oral averments and affirmation in his favour the deposition of workman cannot be believed. Hence it cannot be said that workman herein is employee of management no. 1.
9.8 The workman has proved demand notice and speed post receipt as Ex.WW1/3 and Ex.WW1/4. There is no cross- examination on service of demand notice therefore demand notice has stood proved between the parties and it is held that demand notice was duly served on the management.
9.9 In view of the above it is found that management no. 1 was the principal employer for whom the workman was driving the bus and the control, supervision, receipt of salary and direct employment of workman was with the management no. 2 only. Management no. 1 is not the employer of the workman. Hence it is LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 22 of 29 held that workman, has failed to prove the employer and employee relationship between him and management no. 1. The case of the workman is that he be reinstated by both the management jointly and severally. However there is no legal fiction vide which joint and several liability can be created in favour of workman and against both the managements. In fact the workman must have chosen to get reinstated with one of the employer only. Since the workman has claimed in entire evidence that he is employee of management no. 1 which he failed to prove on record and accordingly present issue is decided in favour of management and against the workman.
10. ISSUE NO. 22. Whether the workman was an employee on contract basis, if so, to what effect?
10.1 The findings under issue no. 1 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
10.2 The burden of proof of present issue is on the management no. 2 who has claimed that workman is his employee.
LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 23 of 29Admittedly no appointment letter was ever given to the workman. MW2 during cross-examination has admitted as correct that original letter of appointment which is Ex.MW2/3 is still in the possession of the management which is Ex.MW2/WX4 on record. Since the appointment letter was never given to the workman by the management therefore on the face of it the workman had no knowledge about the terms of contract Ex.MW2/WX4. In absence of knowledge of above terms and accepting such terms by given joining after such knowledge it cannot be said that the contract Ex.MW2/WX4 was ever executed or completed between the parties. i.e. the workman and management no. 2. The workman has claimed that he is in employment of management since the year 22.07.2013 and the date of his illegal termination is 07.07.2015. Management no. 2 has claimed that workman was engaged by management no. 2 only for a limited period till 31.05.2015. The workman had joined the management on 22.07.2013 purely on tenure basis. Thereby the management has admitted the joining of workman on 22.07.2013. The ESI card Ex.MW2/6 shows the date of appointment of workman as 22.07.2014. In fact this ESI card is filed only by the management which was issued for the workman. At one point management pleads that the workman was employed on 22.07.2013 and at other point in ESI it claims that the workman LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 24 of 29 was appointed on 22.07.2014 thereby the conduct of the management is doubtful and management cannot be believed at all regarding the date of appointment of the workman. However, it is already admitted by the management that he was appointed on 2013. Hence the date of appointment of the workman is taken as 22.07.2013 and it is held that such date is date of appointment of workman.
10.3 However management has pleaded that workman was appointed for limited period upto 31.05.2015 which management seeks to prove vide Ex.MW2/WX4. Ex.MW2/WX4 already stands rejected on record as management failed to prove due execution of this contract with workman. There is no other evidence with the management to prove a contract of limited period hence it is found that the contract of the management with the workman was not for a limited period but it was continuing regularly from 22.07.2013. However the burden of proof is on the workman that he was under
employment of management till the date of his illegal termination on 07.07.2015. Management no. 2 has claimed that contract has ended on 31.05.2015. Workman has pleaded that his salary was not paid and which was withheld for the month of June 2015 and seven days for the month of July 2015. However the workman has not LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 25 of 29 proved on record that he had worked for this one month and for seven days by calling necessary record from the management. The workman has not moved an application for calling record from employer u/Sec. 11(3) of Industrial Disputes Act, 1947. The management no. 2 has admitted employment of workman from 22.07.2013 till 31.05.2015. It is not found a contract for limited period nor the service of workman was rendered on fixed work contract basis. Accordingly it is held that management has failed to prove that the contract of the workman was of limited period and was of limited nature with management no. 2. Accordingly present issue is decided against the management and in favour of workman.
11. ISSUE NO. 3:
In terms of reference.
3.Whether the services of workman 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 11.1 Since the case of the management is not that workman has abandoned the service and it is admitted case of both the parties that workman has worked till 31.05.2015. Thereby in view of the findings under issue no. 2 above it is held that workman did want to LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 26 of 29 continue work with management no. 2 which management no. 2 did not allow the workman on the basis of the contract which was of limited nature and infact which was not. Thereby the management no. 2 could not have retrenched the service of the workman on the ground that the contract of his service was of limited nature. There is no other justification with the management for relieving the service of the workman. As per averment of the management relieving the service of the workman on 31.05.2015 was unjustified and illegal and workman could not be retrenched without compensation u/Sec. 25F of Industrial Disputes Act, 1947. Management has failed to show that it had complied with the above provision. In absence of such compliance by the management it is held that the termination of workman is illegal and unjustifiable on 31.05.2015 and accordingly the issue under terms of reference is decided in favour of workman and against the management.
12. R E L I E F 12.1 In view of findings under issues above it is held that this case falls under the category of illegal retrenchment in violation of principle of Sec. 25F of Industrial Disputes Act, 1947 without any justification and non-compliance of principles of natural justice.
LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 27 of 29Accordingly workman is held entitled and has been granted the following reliefs u/Sec. 11A of Industrial Disputes Act, 1947 among other provisions of law as under:
(i) Immediate reinstatement with management no. 2 from the date of publication of this Award with;
(ii) Full back wages since 22.07.2013 from management no. 2 from the date of his illegal termination @Rs.12,000/- per month the last drawn wages upto the date of publication of Award with;
(iii) All consequential benefits from the date of his termination till the date of his reinstatement with management no. 2.
(iv) All the due amount be paid by management no. 2 within one month of the date of publication of present Award with interest @6% per annum from the date of publication till its realization.
(v) The workman is also awarded the cost of litigation against management no. 2 for a total sum of Rs.30,000/- u/Sec. 11(7) of Industrial Disputes Act, 1947.
12.2 A copy of Award be sent to the Competent Authority/appropriate Government i.e., Joint/Deputy Labour LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 28 of 29 Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly.
File be consigned to record room after due compliance. Announced in the open Court on 20.10.2022. JOGINDER Digitally signed by JOGINDER PRAKASH NAHAR PRAKASH NAHAR Date: 2022.10.20 16:35:49 +0530 (JOGINDER PRAKASH NAHAR) PRESIDING OFFICER LABOUR COURT-IX ROUSE AVENUE COURT COMPLEX/NEW DELHI LIR No. 7752/16 Lalit Kumar v. M/s. N.K. Bagrodia & Anr. Page 29 of 29