Delhi District Court
Unknown vs State Of Tamil Nadu And Others on 15 December, 2010
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 392/03
Unique Case I.D. No. 02402C0008142003
Date of Institution : 07.11.2003
Date on which award reserved : 14.12.2010
Date of passing of award : 15.12.2010
BETWEEN THE WORKMEN
Smt. Kamlesh and 3 others as per Annexure A,
C/o X/1837, Red House Park Marg, Rajgarh Colony, Delhi - 31.
AND THE MANAGEMENT OF
M/s. Jain Hospital (Jain Neuro Centre, Jain Fertility &IVF Centre),
177178 Jagriti Enclave, Vikas Marg Extn., Delhi - 92.
AWARD
1.The Secretary (Labour), Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F. 24(2540)/ 2003/Lab./2960165 dated 29.10.03 with the following terms of reference.
"Whether the services of Smt. Kamlesh and 3 others as per annexure A, have been terminated by the management illegally and/or unjustifiably and if so,to what relief are they entitled and what directions are necessary in this regard?"
2. The statement of claim has been filed jointly in this case on behalf of four workmen namely S/Smt. Kamlesh, Kusum, Gita Goswami and Sh. Sanjay respectively. The main submissions made by workmen in this ID NO. 392/03 Page 1 of 13 joint statement of claim are to the effect that they had been working with M/s. Jain Hospital in its units namely Jain Neuro Center, Jain Fertility Center and IVF Centre respectively (in short referred to as management) as Safai Karamcharis/sweepers; that the management illegally and unjustifiably terminated their services along with other safai karamcharis and as such they have raised the present industrial dispute; that the management was a 35 bedded hospital at the relevant time and was employing more than 60 employees in the categories of Nurses, Doctors, Safai Karamcharis/Sweepers etc.; that the management is run by Dr. Anil Kumar Jain and his wife Smt. Sangeeta Jain; that they are the Proprietors of the management and responsible for its entire working; that the management had adopted various unfair labour practices to exploit its workers with a view to escape its liabilities under various labour laws; that the management neither issued appointment letters to its Safai Karamcharis nor properly maintained their records; that when they demanded legal facilities from the management, it became annoyed and ultimately terminated their services illegally and unjustifiably w.e.f. 01.03.2003 without any justified reasons; that the management employed Safai Karamcharis afresh after terminating the services of earlier Safai Karamcharis and such fresh appointments were made through a Contractor Sh. Vijay Malhotra; that Dr. Anil Kumar Jain always used to take signatures of workers on blank papers and resignation letters as a measure of surety before making any direct employment. Lastly, a prayer was made for reinstatements of these workers with their full back wages and all other consequential benefits as per law. ID NO. 392/03 Page 2 of 13
3. The averments of the statement of claim have been strongly opposed in the written statement (in short W/S) filed on behalf of the management. In the W/S, it is averred, interalia, that the management came into existence only in August, 2002; that it was registered as partnership firm and its partners are Dr. Anil Jain and his wife Dr. Sangeeta Jain; that the management is recognised as a firm under the Income Tax Act and assessed to tax as such; that Dr. Anil Kumar Jain started practice in the name and style of Jain Neuro Center and Dr. Sangeeta Jain had set up Jain Fertility Center separately in the portion of the management; that both centers were assessed to income tax separately; that it was a very small establishment with four indoor beds, a lab and a reception counter respectively; that the above two centers expanded gradually to accommodate 10 beds and continued to operate these units till August, 2002; that in the beginning, the number of Safai Karamcharis in both the centers was two to three only and they were employed on parttime basis; that the Safai Karamcharis used to remain absent without any prior permission or intimation causing serious difficulties and dislocation of work of management; that Dr. Anil Kumar Jain and Dr. Sangeeta Jain entered into a contract in April, 1996 with Sh. Kailash and Smt. Raj Kumari for safai/house keeping work and payment for the work done by the Safai Karamcharis was made by Sh. Kailash and Smt. Raj Kumari who used to disburse the wages to the individual Safai Karamcharis employed by them; that in October, 1997, the contract for safai/house keeping was given to Sh. Rakesh and Smt. Chandrakanta; that this contract was terminated with the mutual consent in February,2000 ID NO. 392/03 Page 3 of 13 following which, four persons i.e. S/Sh. Rakesh, Anil, Kanwar Pal and Smt. Chandrakant were taken in employment as Safai Karamcharis by the management; that the management was formally inaugurated on 05.01.2003; that all its employees were paid minimum wages and all other facilities were provided to them as per provisions of different labour laws; that the work of housekeeping in the management was on contract basis w.e.f. 01.03.2003 onwards; that there was no employer and employees relationship between the claimants and the management; that nothing was due to any of the claimants herein against the management. Lastly, a prayer was made to dismiss their statement of claim.
4. In the rejoinder filed to WS, averments made in the statement of claim were reiterated and those made in the WS were denied.
5. On the basis of the pleadings of the parties, following issues were framed on 20.01.2005
1. Whether there is no relationship of employer and employee between the parties?
2. As per terms of reference.
6. From the side of the workmen, WW1 Smt. Gita Goswami and WW2 Smt. Kamlesh respectively were examined in this case and they also filed their respective affidavits Ext. WW1/A and Ext. WW2/A respectively on record in support of their respective contentions. WW3 Smt. Chandrakanta was examined in chief but she did not appear thereafter for the purpose of her crossexamination by and on behalf of the management and hence her partly recorded evidence cannot be taken into consideration. The remaining evidence of the workmen side was also ID NO. 392/03 Page 4 of 13 closed as per order of this court dated 11.10.2010.
7. From the side of the management, MW1 Dr. Sangeeta Jain was examined who also filed her affidavit Ext. MW1/A on record in support of the contentions of the management and then evidence of the management was closed.
8. Oral final arguments in this matter were heard from both sides.
9. Ld. Authorised Representative of workmen (in short ARW) Sh. M.N. Singh submitted, during the course of oral final arguments, interalia, that there was employer and employees relationship between the parties herein; that services of the workmen involved in this matter were terminated illegally by the management without any justified reasons; that the signatures of these workmen were taken by Dr. Anil Kumar Jain, on behalf of the management, on blank papers and vouchers; that necessary records were not prepared by the management intentionally in order to deprive these workmen of their legal benefits as per law; that management was always employing more than 25 Safai Karamcharis at a time but it did not maintain proper records in this regard intentionally in order to deprive the workmen of their legal benefits; that the services of the workmen herein were terminated by the management without any justification. Lastly, a prayer was made for their reinstatements with full back wages and all other consequential benefits as per law.
10. On the other hand, the main submissions made by Ld. Authorised Representative of management (in short ARM), Sh. Inderjeet Singh were, interalia, to the effect that the burden of proof of proving employer and employees relationship between the parties herein was primarily upon the ID NO. 392/03 Page 5 of 13 claimants; that these claimants were never employed by the management at any point of time and they have raised this false and baseless industrial dispute against the management in this matter in order to extract some money; that out of the four claimants involved in this dispute, only two claimants namely Smt. Kamlesh and Smt. Gita Goswami have appeared and deposed in support of their contentions; that remaining two claimants namely Smt. Kusum and Sh. Sanjay have not appeared to depose in support of their contentions and hence they are not entitled to claim any relief against the management in this matter; that the other witness namely WW3 Smt. Chandrakanta partly examined herself of behalf of contesting claimants but she did not come thereafter for her cross examination by and on behalf of the management and hence her partly recorded evidence cannot be taken into consideration; that one more witness namely Sh. Rakesh had filed his affidavit only in lieu of his examination in chief in support of case of claimants but he has also not appeared for his deposition on the basis of this affidavit and hence, his partly recorded evidence also cannot be taken into consideration against the management; that even the two witnesses namely WW1 and WW2 respectively have miserably failed to establish their relationship as employees of management, by any cogent evidence, either oral or documentary; that once there was no employer and employees relationship between the claimants involved in this matter and the management, the question does not arise about termination of their services illegally and/or unjustifiably by the management, as alleged; that nothing was due to any of them from the management. Lastly, a ID NO. 392/03 Page 6 of 13 prayer was made to dismiss their statement of claim.
11. I perused the entire judicial file minutely in view of above mentioned rival submissions and my issuewise decision is as under: ISSUE NOs. 1 & 2
12. I have taken up both these issues together because to my considered view, both these issues are interconnected with each other and can be decided by the same reasoning.
13. In my further considered opinion, the primary burden of proof of issue no. 1 was upon the workmen. In coming to this conclusion, I also find support from the judgment of Hon'ble Supreme Court of India given in the case of Workmen of Neelgiri Cooperative Marketing Society Ltd. vs. State of Tamil Nadu and Others, 2004 LLR 351 (Supreme Court). The Hon'ble Apex Court held in this case mainly to the effect that it was well settled principle of law that the person who sets up the plea of existence of relationship of employer and employee would have to prove it. It was also held in this case that the burden of proof was on the workman to establish the employer and employee relationship and that an adverse inference cannot be drawn against the employer if the employer failed to produce certain documents before the court. It was also held that where a person asserts that he was employed by the company and it is denied by the company then it was for him to prove that fact and that it was not for the company to prove that he was not an employee of the company but of some other person.
14. In my further considered opinion, the primary burden of proof of ID NO. 392/03 Page 7 of 13 issue no. 2 was also upon the workmen. In coming to this conclusion, I further find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another, 1999 V AD (Delhi) 514. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on his aspect and the Hon'ble Delhi High Court further held in this judgment that General Principal, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act was that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or nonexistence of a fact contended to by a party. It was further held in his judgment that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof.
15. On this point, I also find support from an important judgment of Hon'ble Allahabad High Court given in the case of Canara Bank vs. Union of India & Ors. 1998 Lab.I.C. 2923 (Allahabad High Court). The Hon'ble High Court held in para 11 of this judgment to the effect that section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right and liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of ID NO. 392/03 Page 8 of 13 any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Section 102, 103 and 106 of the Evidence Act pertaining to burden of proof in such like cases.
16. Now turning to the evidence of WW1 Smt. Gita Goswami on record pertaining to these issues, she admitted in her crossexamination, inter alia, that she was appointed by Dr. Anil Kumar Jain; that no appointment letter was given to her; that she used to work from 8 am to 8 pm and even beyond 8 pm daily but no overtime allowances were paid to her; that she never demanded the payment of overtime allowance in writing; that she did not make any complaint in writing to any labour authority for working beyond 8 hrs. and for nonpayment of her overtime allowances during her employment with the management; that Dr. Anil Kumar Jain used to pay her wages but her thumb impression was not taken at the time of payment of wages; that there was only one ward boy namely Mr. Sanjay; that she was terminated on 01.03.2003; that she worked for one year and four months prior to termination of her services; that she could not tell the names of the laws which were flouted by the management; that she did not know about the Provident Fund; that they did not demand payment of overtime and other legal benefits from the management in writing; that no complaint was made by any of them against the management for obtaining their signatures forcibly; that it was correct that contents of para 23 of her affidavit regarding nonpayment of gift of Diwali of year 2003 were incorrect.
17. WW2 Smt. Kamlesh admitted in her crossexamination, interalia, ID NO. 392/03 Page 9 of 13 that she did not remember the exact date from which she started working with the management; that she joined the management one month before Diwali but she could not remember the exact year; that her services were terminated by the management in the year 2003; that she was appointed by Mr. Jain; that no appointment letter was issued to her; that she did not demand any appointment letter nor made any complaint to any labour authority in this regard; that she did not know the full name but a person called as 'Jain Sahib' used to pay her salary every month; that the payment was made on hospital records; that she did not make any complaint in writing that she was not paid by the hospital; that she had a temporary proof regarding her employment with the management which she gave to her Authorised Representative; that she was illiterate and could not find those documents in the judicial file; that her affidavit was prepared by her Advocate on the basis of whatever was stated by her to her Advocate; that she could not say what the term 'relevant time' meant for as mentioned in para 3 of her affidavit; that no complaint in writing was made by her to any labour authority regarding overtime work; that she used to work at the house of Dr. Anil Kumar Jain but she had not so mentioned in her statement of claim; that she did not remember the exact date of termination of her services; that she did not know the laws which she mentioned in her affidavit on record; that she did not make any complaint in writing to the management or the labour authority regarding nonmaintenance of proper records by the management; that her signatures were taken by the management on blank papers but she did not remember the date when her signatures were so taken by the ID NO. 392/03 Page 10 of 13 management; that she did not make any complaint to the police authorities regarding this fact; that she did not recollect the name of the persons who had taken her signatures on blank papers.
18. As already mentioned, WW3 Smt. Chandrakanta was examined in chief on 27.09.2010 but she did not volunteer thereafter for the purpose of her crossexamination by and on behalf of the management and hence, her partly recorded evidence cannot be taken into consideration. Similarly, Mr. Rakesh filed his affidavit only on record in lieu of his examination in chief but he also did not appear thereafter for his deposition on the basis of this affidavit as well as for his cross examination by and on behalf of the management despite several dates given for evidence of workmen side from time to time. Hence, his partly recorded evidence, by way of affidavit, also cannot be taken into consideration. The remaining two claimants namely Smt. Kusum and Sh. Sanjay have not deposed in support of their contentions despite sufficient time given for evidence of workmen side from time to time and hence, they are not found entitled to claim any relief against the management in the absence of their depositions.
19. In this way, there are only two material witnesses namely WW1 Smt. Gita Goswami and WW2 Smt. Kamlesh who have deposed in this matter on behalf of the contesting workmen, as mentioned above.
20. I have also gone through the documents relied upon in this case from both sides.
21. From the above mentioned own admissions of WW1 and WW2 respectively, coupled with other material on record, I am of the ID NO. 392/03 Page 11 of 13 considered opinion that even these two workmen have miserably failed to establish on record, by way of any cogent evidence, either oral or documentary, that there was really an employer and employees relationship between the parties herein. In other words, both of them have also miserably failed to prove issue no. 1 in their favour and more particularly as per the mandate of the judgment of Hon'ble Supreme Court of India given in Workmen of Neelgiri Cooperative Marketing Society Ltd. case (Supra). Hence, issue no. 1 is decided against the claimants and in favour of the management.
22. Once the claimants herein have miserably failed to establish employer and employees relationship between the parties herein, as discussed above, the question does not arise about termination of their services illegally and/or unjustifiably by the management, as alleged. Even otherwise, only two contesting workmen namely WW1 Smt. Gita Goswami and WW2 Smt. Kamlesh have also miserably failed to establish on record by way of any cogent evidence, either oral or documentary, that even their services were really terminated illegally and/or unjustifiably by the management. Hence, the claimants herein have miserably failed to satisfy this court that their services were really terminated illegally and/or unjustifiably by the management, as alleged. Accordingly, issue no. 2 is also decided against the claimants and in favour of the management.
RELIEF:
23. In view of the findings of this court on issue nos. 1 and 2 to the above ID NO. 392/03 Page 12 of 13 effect, I am of the considered opinion that the claimants herein are not entitled to claim any relief against the management in this case. No directions are necessary to be passed in this regard. An award is passed to the above effect and reference answered accordingly.
24. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. SHAHABUDDIN)
i.e. on 15.12.2010 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
ID NO. 392/03 Page 13 of 13