Delhi District Court
In Case Chander Sen & Ors. vs J.B.Garments 2009 Llr 959, Hon'Ble on 7 December, 2012
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IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 142/10
Sh. Ajit Singh
s/o Sh. Late Sh. Hari Shanker Singh
c/o Rashtriya Rajdhani Kaamgar Sangthan
B2695, Gali No.68, Sant Nagar Burari,
Delhi84. ...... workman
VERSUS
M/s Payal Gas Service
4, ISBT, Kashmere Gate,
5, Delhi110006. ...... Management
Date of Institution : 19.05.10
Judgment reserved : 07.12.12
Date of decision : 07.12.12
A W A R D
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24/(180)/ND/40/2009/Lab./141822 dated 05.03.2010 referred the dispute for adjudication between the Management M/s Payal Gas Service ID No.142/10 1/7 2 and its workman Sh. Ajit Singh in the following terms of reference:
"Whether there exists employer and employee relationship between the management and Sh. Ajit Singh s/o Late Sh. Harishankar Singh and if so, whether his services have been terminated illegally and/or unjustifiably by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect?"
2. Statement of claim filed by the workman wherein it has been submitted that the workman worked with the management for the last 10 years as Deliveryman. The last drawn wages of the workman were Rs. 5000/ per month. The management has not provided any legal facilities to the workman i.e. appointment letter, attendance card, leave book, ESI, PF, Bonus, overtime etc. When the workman demanded the said facilities, management got annoyed and started deducting Rs. 2500/ from his salary. On demanding the deducted money from the management by the workman, management obtained his signatures on some blank papers and vouchers and terminated his services on 29.01.09 without giving him any notice or conducting any domestic enquiry. After his illegal termination, workman sent a legal demand notice to the management on 24.02.09 through registered AD and UPC demanding reinstatement and other legal benefits. The same was not replied by the management. Workman also filed a complaint before Labour Office on 25.02.09. On this complaint, Labour Inspected visited the management. Management neither produced any record before Labour Inspector nor reinstated the workman. Workman is unemployed ID No.142/10 2/7 3 since the date of his illegal termination. The prayer has been made by the workman for reinstatement with back wages from the date of his termination along with all other consequential benefits.
3. Notice of the claim was issued to the management. Management has contested the claim by filing WS and took the preliminary objection that the workman has not filed a single document to prove that workman was employed by the management and there was no relationship of workman and management between the parties. The workman was never kept on rolls of the management. The workman has filed the present claim to extract money from the management.
On merits, all the allegations are denied by the management on the plea that workman has never employed by the management at any point of time and there existed no relationship of employer and employee between the parties. The prayer has been made to dismiss the claim.
4. Rejoinder was filed to statement of claim of the workman wherein the contents of the WS were generally denied and the contents of the claim were reiterated and reaffirmed.
5. On the basis of the pleadings of the parties, following issues were framed on 11.10.10 by my Ld. Predecessor Court : ID No.142/10 3/7 4
i) Whether there exists any relationship of employer and employee between the parties?
ii) As per terms of reference.
6. The workman appeared in the witness box as WW1 and led his evidence by way of affidavit Ex. WW1/A. The witness has deposed on the similar lines to that of contents of his claim and has further brought on record the documents Ex. WW1/ 1 to Ex. WW1/ 27
During cross examination, workman deposed to the effect that he was working as a Delivery Boy and was getting the salary of Rs. 5000/ per month. He has not filed any document on record to show that he was getting salary of Rs. 5000/ per month from the management. He has not placed on record any document regarding deduction of Rs. 2500/. He had not placed on record any document which shows that he was working with the management w.e.f. December 1999.
WE closed.
7. On behalf of the management, Ms. Meenu Jain was examined as MW1. This witness has led her evidence by way of affidavit as Ex. MW1/A. She has deposed on the similar lines to that of her WS.
During cross examination, she deposed to the effect that management used to issue appointment letter to its employees at the time of their appointment. The management used to maintain the salary and attendance ID No.142/10 4/7 5 registers of its employees and she can place the same on record, if required. Sh. Ajit Singh never worked with the management as Delivery Boy. The Labour Inspector never called the management at Nimri Colony on 20.03.09 and 26.03.09. No document was produced before any labour official at Nimri colony. All the documents were shown to labour official when they visited the management. When the labour official visited the management, he was informed that the workman never remained employee of the management but this fact was not disclosed to the labour inspector at Nimri Colony as management never went there.
ME closed.
8. I have heard the arguments of the parties besides going through the record carefully. My issuewise findings are as under: ISSUE NO. 1 : Whether there exists relationship of employer employee between the parties.
Heard besides going through the material on record carefully. As a matter of record, workman has not placed on record any documentary proof to prove that he ever worked with the management. No appointment letter, wages register, salary register, ESIC, PF etc. brought on record. During cross examination MW1 Ms Meenu Jain has been submitted to the effect that the management used to maintain the salary and attendance register. She further ID No.142/10 5/7 6 submitted that she can produce the same in court if required. But no request has been made by the workman directing the management to produce the said documents in court.
In case Chander Sen & Ors. V/s J.B.Garments 2009 LLR 959, Hon'ble High court has interalia observed as under:
"there is no dispute about the fact and primarily the onus is on the petitioners/workmen to establish that there exists a relationship of employer and employee between the parties. No presumption on this score can be drawn. The said relationship of employer and employees can be established by the petitioners only by a positive evidence like letter of appointment, wages slip or contribution which is made from the salary/wage of the Workman to ESI to the Provident Fund Commissioner. In the instant case, none of such documents or proofs has been produced by the petitioners. The petitioners have not examined any coworkers who would have testified in their favour."
In case Suresh Bhati v/s Kapil Industries & Ors. W.P.(Civil) No. 1163446/2006, Hon'ble High Court has held to the effect that the law is well settled on this point. The onus to prove relationship is only on the employee or the workman who comes to the labour court to claim a relief under Industrial Dispute Act and non production of document like muster roll cannot lead to a finding in favour of workman. All that the petitioner could offer was letters which the petitioners received from their homes at the address of the management. These letters would not prove any relationship between the ID No.142/10 6/7 7 management and the petitioner.
Further, the workman has not examined any co worker or any independent witness to corroborate his evidence in this regard. Considering the entire facts and circumstances and the abovesaid discussion, it is found that the workman has miserably failed to bring on record any cogent evidence to prove employeremployee relationship. The issue stands decided accordingly in favour of the management and against the workman.
ISSUE NO.2 : As per terms of reference.
As discussed in issue no.1 that no employer employee relationship existed between the parties, hence, there is no question of any illegal termination. Accordingly, the terms of reference is answered in negative and workman is not entitled for any legal benefits as prayed for.
9. Award has been passed. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (BHUPESH KUMAR)
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on 7 December, 2012 Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts : Delhi.
ID No.142/10 7/7
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ID No.142/10 8/7