Delhi District Court
Rajesh Kumar Ist S/O. Sh. Sant Lal vs M/S. Maharaja Agrasen Hospital on 3 September, 2014
Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 188/12
UNIQUE CASE ID No. 02402C0208772012
In the matter of :
Rajesh Kumar Ist s/o. Sh. Sant Lal
R/o. H. No. C2/8, Sultan Puri,
New Delhi - 110086
......... Workman
Vs.
1.M/s. Maharaja Agrasen Hospital, Rohtak Road, West Punjabi Bagh, New Delhi 110026
2. M/s. Kundan & Sons (HUF) Hospital Support Services, E2324, Budh Nagar, Inderpuri, New Delhi - 110012 ..........Managements Date of Institution : 17.07.2012 Date of reserving for award : 03.09.2014 Date of award : 03.09.2014 AWARD :
1. TERMS OF REFERENCE.
Vide Order No. F.3/(296)/11/REF/WD/LAB/586 dated 02.07.2012 Deputy Labour Commissioner (West District), Labour Department, Government of N. C. T. of Delhi, Karampura, New Delhi - 110015 made following reference under section 10 (1) (c) and 12 (5) of the Industrial Page 1 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 Disputes Act, 1947 vide Government of N. C. T. of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 3rd March, 2009 for adjudication by this Court:
"Whether employer employee relationship existed between Sh. Rajesh Kumar Ist S/o Sh. Sant Lal and the management of M/s Maharaja Agrasen Hospital or the management of M/s Kundan & Sons (HUF) and if so whether his services 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?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM.
(i) Workman joined the services of management no.1 on 20.11.1993 as 'Ward Boy' with his last drawn wages as Rs.3,640/ per month. The management no.1 had no complaints against the performance and conduct of workman.
(ii) Management no.1 is employing around 1100 workmen out of whom around 500 workmen are being kept as temporary, casual and contract workers though they are engaged on permanent basis and the work being performed by them is permanent and perennial in nature. The work being performed by workman was permanent and perennial in nature.
(iii) Workman has been a member of the Maharaja Agrasen Hospital Employees Union which had raised two industrial disputes claiming regularization of services of workmen who were working on temporary / casual and alleged contract basis. However, inadvertently name of workman alongwith some other workers was left out from the list of workmen filed as being covered in the above two industrial disputes.
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Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12
(iv) Management no.1 wanted to defeat the claim of workmen who were
working on temporary / casual / alleged contract basis for regularization. The workman was asked to disassociate from the activities of union, but workman refused for the same. Management no.1 was marking time to terminate the services of workman to permanently defeat his claim for regularization.
(v) On 22.11.2008 management illegally, arbitrarily and with malafide intentions terminated the services of workman without following due process of law as provided under the Industrial Disputes Act, 1947. Workman was neither issued any chargesheet nor any domestic enquiry was held. At the time of termination of services of workman, many workmen junior to him were still in service of management. No notice or notice pay in lieu thereof was offered or paid to workman prior to termination of his services. After termination of his services, workman regularly reported for duty before management no.1 seeking reinstatement but management refused.
(vi) After termination of his services, workman sent a speed post demand notice to management on 23.11.2008. However, management did not reinstate the workman. Workman filed an application under Section 33A of the Industrial Disputes Act, 1947 before the Industrial Tribunal no.1, Karkardooma Courts, Delhi. However, on 30.05.2011 the said application under Section 33A of the Industrial Disputes Act, 1947 was withdrawn by the workman for technical reason with liberty to file fresh case before proper Forum as per law and the Hon'ble Industrial Tribunal allowed the workman to withdraw the application under Section 33A of the Industrial Disputes Act, 1947 with liberty Page 3 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 to file fresh claim.
(vii) Workman also sent a fresh demand notice on 08.06.2011 to both managements. Management no.1 sent a reply and refused to accept the demands of the workman and no response was received from the management no.2. Management no.1 sent a reply dated 15.06.2011 to workman stating that there is no employeremployee relationship between management no. 1 and workman and claimed that the workman has been an employee of independent contractors engaged by management no. 1.
(viii) As the conciliation proceedings failed before the Labour Department, the Government of N. C. T. of Delhi sent the present industrial dispute to this Court for adjudication.
(ix) Workman is not aware about any contract between the management no.1 and management no.2 and, if any, contract as alleged exists as claimed, same is a sham and bogus contract to camouflage the employeremployee relationship between the management no.1 and workman. Management no.2 had nothing to do with the recruitment, supervision and control or payment of wages to workman. Workman was recruited by management no.1 and his work was being supervised and controlled by management no. 1. As per workman, management no.2 is being made a party to present proceedings by way of abundant caution since during the course of proceedings under Section 33A of the Industrial Disputes Act, 1947 before the Industrial Tribunal management no.1 stated that workman was an employee of management no.2. Management no. 2 has not called upon workman to rejoin duties.
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(x) Workman is unemployed after termination of his services by
management and despite best efforts he could not get any alternative employment throughout Delhi and surrounding areas till date. As alleged management no.1 has also made fresh recruitments of a large number of workmen after termination of services of workman.
With these averments workman has prayed for an award in his favour and against any of the two managements with whom employeremployee relationship is established with the workman reinstating the workman in services with continuity of service, full back wages and all other consequential benefits.
3. CASE OF BOTH MANAGEMENTS AS PLEADED IN WRITTEN STATEMENTS OF DEFENCE.
The management no.1 has contested the claim of workman by filing a detailed written statement. In its written statement management no. 1 has denied the case as pleaded by workman. In substance, defence taken by management no.1 is that claimant was never employed by management no.1 and, therefore, the reference and claim statement as against management no. 1 is not maintainable and is liable to be rejected. As per the management no.1 it never employed the claimant as Ward Boy and the work of housekeeping including that of a Ward Boy in the hospital, has always been performed by independent contractors through their own employed persons, whose wages are paid by them and whose supervision and control is also exercised by them alone. As per the management no.1 since it never employed the claimant, the Page 5 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 question of management no.1 watching the performance and conduct of the claimant and terminating the services of the workman does not arise. Management no.1 has alleged that the contract / agreement between the management no.1 and management no. 2 is not sham and bogus.
Management no.2 has also filed a detailed written statement denying the averments made by workman in his statementofclaim. In substance, the defence taken by the management no.2, is that management no.2 had employed claimant for work at any of its sites, where it had undertaken to perform housekeeping jobs, for various different concerns, hospitals and it had never terminated the services of the claimant till date. As per management no.2 claimant has not been reporting to management no.2 for assignment of duties at any of its sites w.e.f. 22.11.2008 without any intimation and sanction of leave of absence and management no.2 is still prepared to provide duties to claimant at any of its sites. As alleged, claimant alongwith some other employees employed by the management no. 2, resorted to strike w.e.f. 22.11.2008 on the instigation of some so called union activists and despite persuasion, they did not report for work; instead, the claimant preferred application under Section 33A of the Industrial Disputes Act, 1947 without impleading the management no.2 as a party. Reportedly, said complaint was withdrawn and demand notice was sent to management no.2 in month of May' 2011 and conciliation proceedings commenced. However, despite best efforts of Conciliation Officer, disputes could not be settled as claimant remained fixed on his stand of getting reinstated with the management no.1 only. The dispute is not covered under Section 2A of the Industrial Disputes Act, 1947 as there has been no Page 6 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 termination of services nor is it covered under 2K of the Industrial Disputes Act, 1947 for want of espousal. Hence, the dispute is liable to be rejected as not maintainable.
4. REJOINDER.
The workman filed separate rejoinders to the written statements of managements wherein he denied the stand taken by managements and reaffirmed the averments made in the StatementofClaim.
5. ISSUES Vide order dated 16.04.2013 following issues were framed:
(i) As per terms of reference.
("Whether employer employee relationship existed between Sh. Rajesh Kumar Ist S/o Sh. Sant Lal and the management of M/s Maharaja Agrasen Hospital or the management of M/s Kundan & Sons (HUF) and if so whether his services 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?")
(ii) Relief, if any.
6. EVIDENCE.
On 03.09.2014, case was fixed for WE and Court has passed the following order: "ID No. 188/12 03.09.2014 Present: Mr. Mohan Lal, ARW.
Ms. Deepti Singh, adv. for both managements. Today case is fixed for WE. Ld. ARW stated that workman is not in his touch since long. Further it is submitted that Court may pass appropriate order. Sufficient opportunities have been given to workman to lead WE. No further opportunities deserves to be given for WE. Accordingly, WE closed by court Page 7 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 order.
It is submitted by ld. counsel for both managements that in the absence of WE, she does not want to lead any ME. Hence, ME is also directed to be closed........."
7. My ISSUEWISE FINDINGS are as under: ISSUE No. 1: As per terms of reference.
("Whether employer employee relationship existed between Sh. Rajesh Kumar Ist S/o Sh. Sant Lal and the management of M/s Maharaja Agrasen Hospital or the management of M/s Kundan & Sons (HUF) and if so whether his services 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?") In this case, no evidence whatsoever has been led by the workman. The Hon'ble High Court of Delhi in case law reported as Tin Box Company Vs. Inderjit Singh & Ors. 2003 LLR 544 has observed as under:
"5. He has also placed a decision of the Allahabad High Court in Airtech Private Ltd. V. State of Uttar Pradesh & Ors. Reported in 1984 (49) FLR 38, wherein a similar fact situation had arisen. In the said decision, it has been observed that the statement of claim supported by the affidavit of the workman constitute the preliminary evidence and it is upon the Management / employer to controvert the same and if not so controverted then nothing further needs to be proved and done by the workman. However, the primary responsibility of establishing his case rests on the workman. And in that case, the Allahabad High Court held that the Labour Court had patently erred in holding that the burden of proof lay upon the employers. It further held that the obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. The party making the allegation and seeking redressal must seek an opportunity to lead evidence. A similar view was taken by the Division Page 8 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 Bench of the said Allahabad High Court in the case of V. K. Raj Industries Vs. Labour Court & Ors. Reported in 1981 (43) FLR 194.
6. Agreeing with the view taken in the said decisions of the Allahabad High Court, I hold that the impugned dated 22nd February, 1989 passed by the Labour Court asking the petitioner to lead evidence first cannot be sustained in law and, I accordingly quash the same. The workman is to lead evidence first as it is he who has to establish his allegations. The matter is remanded to the Labour Court for adjudication as per provisions of law. It is made clear that this court has not expressed its views on the merits of the reference. In these circumstance there shall be no order as to costs." (underlining by me.) The gist of this case law is that burden of proof lies upon the workman and not the management to lead his evidence at first instance before the Labour Court adjudicating the dispute about termination of his services. In the case in hand stand of workman is that workman was employed by management no. 1 as a Ward Boy. It is not case of workman that he had the relationship of employer and employee with management no.2. In rejoinder to written statement of management no.2, workman also denied the stand of the management no.2 that it was management no.2 who had employed the workman. As stand taken by the management no.2 as regards it being the employer of workman has been denied by the workman, in the absence of appropriate evidence by the parties, this Court cannot give a finding of fact whether or not workman was employed by the management no.2. As no evidence whatsoever has been led by the workman, the issue in question deserves to be decided against the workman.
Accordingly, it is held that workman has failed to establish existence of Page 9 to 10 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD.:DELHI:03.09.2014 Rajesh Kumar Ist Vs. M/s. Maharaja Agrasen Hospital and Anr. ID No. 188/12 employeremployee relationship between him and the management no.1 or between him and either of the managements. In such a factual background the question of illegal and / or unjustified termination of services of workman by either of managements does not arise at all. Issue stands decided accordingly. ISSUE No.2: Relief, if any : In view of my findings on the issue no.1 workman is not entitled to any relief.
8. Reference stands answered accordingly in view of my findings on Issue No. 1 and Issue no. 2.
9. Parties to bear their own costs.
10. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 03.09.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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