Delhi District Court
Through vs M/S Gouri Enterprises on 21 December, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 8791/16
Sh. Vikas Kumar
S/o Sh. Kripal Singh
R/o: RZC125, New Roshan Vihar
Phase - I, Najafgarh,
New Delhi - 110043
Through
Rashtriya Rajdhani Kshetra
Engineering and General
Majdoor Union (Regd),
C139, Karampura,
New Delhi - 110015
....CLAIMANT
VERSUS
M/s Gouri Enterprises,
Shops No. 4849,
Dada Dev Mandir Market,
Sector - 7, Dwarka,
New Delhi - 110077
....MANAGEMENT
Date of institution of the case : 26.07.2016
Date of passing the Award : 21.12.2018
AWARD
1.A reference dated 14.11.2014 was received for adjudication by this Court which was sent by Dy. Labour Commissioner, under Section 10(1)(c) and 12(5) of I.D.Act, LIR No: 8791/16 Page 1 of 12 read with Notification no. F.1/31/616/ESTT./2008/7458 dated 03.03.2009, on a complaint filed by Claimant against the Management, wherein the following reference was to be answered: "Whether there existed an employer employee relationship between the management and Sh. Kripal Singh S/o Sh.
Sahib Singh and Sh. Vikas Kumar S/o Sh.
Kripal Singh and if so, whether services of the said Sh. Kripal Singh and Sh. Vikas Kumar have been terminated illegally and/ or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, claiming therein, that he was working with the management as Delivery man since May 2004 and his last drawn salary was Rs. 8,500/ per month. The workman had worked to the utmost satisfaction of the management without offering any chance of complaint nor he was ever charge sheeted by the management. It was further stated that the management had deprived the workman of the statutory benefits such as appointment letter, attendance card, ESI, pay slip, paid holidays as well as CLs etc. Neither his attendance was recorded by the management nor his signatures were obtained on the salary register. When the workman had raised the aforesaid demands, the management got annoyed and upon his raising the demand LIR No: 8791/16 Page 2 of 12 for his due salaries for the several months then the management had terminated his services abruptly on 01.06.2014 in an illegal and arbitrary manner withholding his wages for the period from 01.01.2014 till 31.05.2014.
3. On 05.06.2014, the workman had made a complaint before the Asst. Labour Commissioner through his Union after which the Labour Inspector had inspected the premises of the management and had asked it to reinstate the workman and also to pay his dues but the management did not pay any heed to the same and had flatly refused to reinstate the workman.
4. Thereafter a demand notice dated 24.06.2014 was sent to the management vide speed post on 01.07.2014, however, despite service of the same, the management had neither replied nor complied with the said notice.
5. Thereafter on 08.07.2014, the statement of claim was filed before the Conciliation Officer in which the management had stopped appearing after filing its written statement.
6. After failure of the conciliation proceedings as well as other labour proceedings, the present reference was made and sent to this Court for adjudication. It was prayed in the statement of claim that the workman was entitled to LIR No: 8791/16 Page 3 of 12 reinstatement in service with full back wages as well as continuity of service and a direction be issued to the management in this regard.
7. Notice of the claim was issued to Management who was duly served with the same and had also appeared to contest the claim of claimant on merits and filed its written statement wherein it was stated that workman was never in the employment of the management. Rather he was employed by his father Kripal Singh without the knowledge and permission of the management to assist him in the work of delivery man. Kripal Singh himself was stated to be working with the management on contractual basis.
8. On merits all the contents of statement of claim unless the same were specifically admitted or essentially or purely constituted the matter of record, were denied by it as wrong and incorrect.
9. Workman had also filed his replication to the said written statement wherein he had denied the contents of WS as wrong and reiterated the contents of his statement of claim as correct.
10. No issues were framed in this case and the matter was directly put up for workman's evidence.LIR No: 8791/16 Page 4 of 12
11. In order to discharge the onus of proving his case, the workman had stepped into the witness box as his own witness and filed in evidence, his examination in chief by way of affidavit Ex. WW1/A, wherein, he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, the workman had also placed reliance on the following documents :
1. photocopy of the representation dated 05.06.2014 made to the Asst. Labour Commissioner on the letter head of the Union is Ex. WW1/1;
2. photocopy of the demand letter dated 24.06.2014 along with its postal receipt is Ex. WW1/2 and Ex. WW1/3;
3. photocopy of the statement of claim filed before Conciliation Officer is Ex. WW1/4;
4. photocopy of the rejoinder filed to the reply of the management before the Conciliation Officer is Ex. WW1/5;
5. photocopy of one ID Card is Ex. WW1/6;
12. During his cross examination conducted by ld. AR for the management, he had submitted that management was joined by him on 01.05.2004, however, he had no documents to prove the same. He had denied the suggestion put to him on behalf of the management that he had never worked with the management.
13. He was stated to be having vehicle no. DL9SAH LIR No: 8791/16 Page 5 of 12 7073 which was stated to be registered in the name of his father Sh. Kripal Singh. It was admitted to be correct by him that he was having a Bolero Jeep having registration no. DL 8CAC0549 registered in his name which was purchased in the year 2013 after getting the same financed from HDFC Bank. However, it was stated to be a private vehicle and not a commercial vehicle.
14. It was also admitted by him that a claim was filed by him before DLC, Hari Nagar under Shops and Establishment Act. Management was stated to have issued ID Cards to other employees and had also issued to him the ID Card which was placed on record by him as Ex. WW1/6. However, it was also admitted by him that the said ID Card did not bear any number nor there was any date of issuance mentioned on the same nor he could tell as to who had filled the same. However, he had denied the suggestion of the management that it was a forged and fabricated document. It was further admitted by him that probably the ID Card was not filled up properly as well as it was not bearing his own signatures on the same. However, he could not tell about the validity of such ID card in the absence of signatures of the holder himself.
15. Further it was admitted by him that he had no document in his possession to show that demand notice was actually served upon the management or not. Ex. WW1/4 LIR No: 8791/16 Page 6 of 12 was admitted to be computerized receipt but he had not filled any accompanying certificate under Section 65B of the Evidence Act. It was further stated by him that his claim filed before the Labour Office, Hari Nagar was ultimately dismissed.
16. Ex. WW1/MX1 was the certificate of verification of measure which was stated to have been given to him by the management, however, he had no documentary proof to show that the same was handed over to him by the management.
17. His family comprises of his parents, his wife, five brothers, one sister and his three children and all of them were living in the same house which comprised of seven rooms and three kitchens. His three brothers were married and were living in separate rooms and were having separate kitchens under the same roof. Even his father lived with his brothers and not with him and he was bearing his kitchen and family expenses himself. His children were studying in Govt. School, Dharampura and he used to earn Rs. 7,000 to 10,000/ per month for the last 1 ½ years from the date of his deposition.
18. In his further cross examination conducted on 29.05.2018, he had not produced the statement of his bank account despite direction of the Court and had denied the LIR No: 8791/16 Page 7 of 12 suggestion put to him that he was assisting his father in the transport business since beginning. Statement of account was stated to have been supplied by him to his AR but for the reasons best known to him, he had not filed the same before the Court.
19. Bolero Jeep which was stated to be registered in the name of the workman as deposed previously was now stated to have been registered in the name of his father and he had claimed himself to have purchased only a bike in the last 10 years. He was stated to have worked as private driver for one Roop Singh of his locality but he could not tell the vehicle number nor the address of said Roop Singh. Other formal suggestions were denied by him as wrong and incorrect. Thereafter workman's evidence was closed.
20. In rebuttal, Sh. Mukesh Bhatt, proprietor of management had appeared in the witness box and filed in evidence, his examination in chief by way of affidavit Ex. MW1/1. Besides this, he had also placed on record the contract executed between him and the father of workman namely Sh. Kripal Singh as Ex.MW1/A and the order passed by the Competent Authority under the Delhi Shops and Establishment Act dated 04.01.2016 as Ex. MW1/B.
21. In his cross examination conducted by ld. AR for the workman, he had denied the suggestion regarding LIR No: 8791/16 Page 8 of 12 appointment of workman by him as a Helper. It was though admitted by him that Lal Babu was working with him as Manager in his office, however, he had no knowledge if the said Lal Babu had issued any ID Card of his firm to the present workman. Ex. WW1/6 was stated to be a fabricated document and Ex. WW1/7 was stated to have been issued in the name of the management firm. It was denied by him that management had taken a security of Rs. 2,000/ from the workman. However, it was admitted by him that no statutory facilities were provided by him to the workman and had further volunteered that since he was not in the employment of the management, hence, the question of providing him any such facilities did not arise at all. The receipt of demand notice was admitted by him and he had also placed on record his reply to the said notice as Ex. MW1/WX1. Conciliation proceedings were also admitted to be attended by him. Other formal suggestions were denied by him as wrong and incorrect. Thereafter management's evidence was also closed.
22. I have heard Sh. Piyush Jain, ld. AR for the management and Sh. Kirori Lal, ld. AR for the workman who had also placed on record his written submissions mentioning the documents exhibited by the workman in his evidence. It has been submitted in the written submissions that dismissal of the case of workman by Labour Commissioner's office had nothing to do with the present case. He had also placed on LIR No: 8791/16 Page 9 of 12 record two citations :
1. Automobile Association of Upper India v/s P.O, Labour Court II & Anr, 2006 LLR 851 (Delhi High Court) wherein it has been held that the burden of proving/ establishing the relationship of employer and employee lies upon the person who had claimed the same and the appointment of the person with the particular employer could be proved either by production of appointment letter, written agreement or by circumstantial evidence or incidental and ancillary record in the nature of attendance register, salary register, leave register or membership of ESI and PF.
(2) Public Works Department Vs. Dev Sukh and Ors; 2004 LLR 158 (Rajasthan High Court), wherein, it was stated that High Court will normally not interfere in the award of Labour Court pertaining to reinstatement with full back wages in exercise of its writ jurisdiction particularly when the employer had failed to prove that the workman was engaged for a fixed period or that he had not completed 240 days in a year immediately preceding to his alleged termination.
23. Be that as it may, the basic question for determination in the present case is the existence of the employer and employer relationship between the parties.
24. In order to prove the same, the workman had solely based his claim on ID Card Ex. WW1/6, the original of which was never produced or filed before the Court and only the photocopy thereof has been exhibited on record. Perusal LIR No: 8791/16 Page 10 of 12 of the record reveals that there is a removal of some material on the ID Card in the column provided for serial number, which though initially existed but seems to have been removed by someone with the aid of remover. Moreover, it does not bear the signatures of Manager at the assigned place and so far as the alleged signatures of Sh. Lal Babu existing at its back side are concerned, the said Lal Babu was never examined by the workman to substantiate his claim of employment with the management. Similarly the said Card did not even bear the signatures of its holder himself.
25. Similarly, the workman had also failed to furnish any proof of his having deposited an amount of Rs. 2,000/ with the management as security, nor, he was able to point out as to in which of the specific areas, he was working as Delivery man for management. So far as the document Ex. WW1/MX1 is concerned, it does not mention anywhere that it was handed over by the management to the present workman.
26. Hence, even from the attending circumstances, the workman had failed to prove his employment with the present management. Thus, I have no hesitation in holding that since the employer employee relationship between the parties which is the basic ingredient for an industrial dispute to exist has not been proved in this case, therefore, the statement of claim as filed by the workman is dismissed LIR No: 8791/16 Page 11 of 12 being devoid of any merits.
Award is passed in the said terms. Reference stands answered accordingly.
Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 21.12.2018
LOKESH Digitally signed
by LOKESH
KUMAR KUMAR SHARMA
Date: 2018.12.26
SHARMA 15:04:47 +0530
(LOKESH KUMAR SHARMA)
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOURT COURT XIX
DWARKA COURTS : NEW DELHI
LIR No: 8791/16 Page 12 of 12