Delhi District Court
Sh. Naveen Khatri vs M/S. S.D.E. Electric on 1 August, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.1366/2019
CNR No.DLCT130023482019
IN THE MATTER OF:
Sh. Naveen Khatri,
S/o Sh. Suresh Kumar,
R/o 146, Chatiya Oliya,
Sonipat, Haryana131001.
Through:
Delhi Mazdoor Union (Regd.)
5239, Ajmeri Gate, Delhi110006.
....WORKMAN/CLAIMANT
VERSUS
M/s. S.D.E. Electric,
PWD, SubDivision B & R,
Copernicus Marg, Haryana Bhawan,
New Delhi110001.
....MANAGEMENT
Date of institution of the case : 28.05.2019
Date of final arguments : 20.04.2022
Date of passing the Award : 01.08.2022
Decision : Dismissed
AWARD
1. Vide this Award, I shall decide the Industrial
Dispute which was referred by Deputy Labour Commissioner,
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Sh. Navin Khatri v. M/s. S. D. E. Electric PWD, Sub-Division B&R
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New Delhi District on a complaint filed by the aforesaid
claimant/workman against the Management, vide reference no.
F.24(19)/DLC/NDD/18/79 dated 25.04.2019, u/s 10(1)(c) and 12
(5) of The Industrial Disputes Act, 1947, wherein the following
reference was to be answered :
"Whether employeremployee relationship exist between Sh.
Navin Khatri S/o Sh. Suresh Kumar and the Management, and if
yes, whether the services of workman Sh. Navin Khatri, S/o Sh.
Suresh Kumar have been terminated illegally and/or unjustifiably
by the management; and if so, to what relief is the entitled and
what directions are necessary in this respect?"
2. Notice of the reference was issued to the workman.
Pursuant thereto the workman appeared and filed his statement of
claim stating that he was working with the management as
'Electrician' since 20.02.2012 and his last drawn wages were
Rs.10600/- per month; he has been working honestly, efficiently,
punctually and regularly and has never given any chance of
complaint to his superior or any officials of the management;
management did not issue any appointment letter to the workman
nor provide the benefit of overtime, bonus, ESI, PF etc. It is
stated that when the workman repeatedly demanded the above
legal facilities from the management, the management by way of
adopting unfair labour practice started showing the name of the
workman on rolls of different agencies without the consent of the
workman and when the workman objected the same, the
management assured the workman that his name will be
transferred back in their record if he kept performing his duties.
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It is further contended that the workman time and
again demanded the legal facilities like bonus, appointment letter,
HRA, pay slip, causal leave, leave encashment, conveyance
allowances etc. but the management every time gave assurance to
provide the same very soon; the management became annoyed
with the workman and the management has started to get rid to
him but failed and on 18.08.2016, the services of the workman
were terminated without any rhyme or reason. Aggrieved
therefrom, the workman issued legal demand notice to the
management but of no avail. The workman also filed his
complaint before the Assistant Labour Commissioner against the
management in respect of his illegal termination. Pursuant
thereto the Labour Inspector had visited at the establishment of
management and gave advise to the management to take back the
workman on the same post but the management had not
reinstated him. Hence, the workman filed his statement of claim
before the Conciliation Officer but no settlement could be arrived
at between the parties and hence the present reference. The
workman claims to be unemployed from the date of his illegal
termination. As claimed, the termination of service of the
workman is illegal and unjustified as the management violated
the provisions of Section 25F & 25G of I.D. Act. It is prayed that
an award be passed in favour of workman and against
management directing the management to reinstate him with
consequential benefits including full back wages and continuity
in service.
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3. Notice of the statement of claim was issued to the
management and management ((Vishwnath Khichi) (Sub
Divisional Engineer) (Electrical) Haryana Bhawan, New Delhi)
had filed the written statement to the statement of claim of
workman contended that the statement of claim filed is abuse of
process of law and no case is made out against the management
herein as alleged; no cause of action ever arose in favour of the
workman to file the present claim as there was/is no direct nexus
between the workman and management herein; statement of
claim is bad for non-joining of necessary parties as the workman
failed to implead the service provider as party which was
necessary for the proper adjudication of the case; the
management is an office of State of Haryana situated at Haryana
Bhawan, New Delhi and the same can not be termed as an
'Industry'; the function of management is to provide facilitate
stay of VIP and govt i.e. Hon'ble Governor and Chief Minister of
Haryana, Chief Justice/Justices of Punjab and Haryana High
Court, Ministers of Haryana Legislative Assembly, Chief
Secretary/Class I officers of Haryana Govt. during their visit to
NCT, Delhi and hence the I.D. Act is not applicable on the
management; the workman was engaged by the service provider
through Various Outsourcing Agency and not by the
management; the workman was under direct supervision and
control of that service provider to make necessary arrangements
for Repairs and Maintenance of the buildings during the stay of
the above mentioned VIP/Officers; the workman was never
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engaged or appointed by the management and management have
no control over the workman; the workman was hired, supervised
and remunerated by the Service Provider whereas the service
provider was engaged by the management; the management has
no connection with the workman.
The management denied all the averments made in
the statement of claim and prayed to dismiss the claim petition.
4. Vide order dated 20.01.2020, the following issues
were framed in view of pleadings of the parties:-
ISSUES:
(1) Whether the management is an 'Industry' as defined
under Industrial Disputes Act? OPW
(2) Whether there existed a relationship of employer and
employee between the workman and present management? OPW.
(3) Whether the present reference is bad for non-joinder
of the necessary parties? OPM
(4) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is the workman entitled for? OPW.
(5) Relief.
The case was, thereafter, fixed for evidence of
workman.
5. In order to discharge the onus and prove the issues,
the workman had appeared as witness and filed in evidence, his
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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, he had also placed on record the
following documents :-
(i) Copy of complaint made to Labour Commissioner
against the management which is Ex.WW1/1 (OSR);
(ii) Copy of statement of claim filed before Conciliation
Officer which is Ex.WW1/2 (OSR);
(iii) Copy of rejoinder to the written statement filed by
the workman before Conciliation Officer which is Ex.WW1/3
(OSR);
(iv) Copy of Identity card which is Ex.WW1/4 (OSR);
(v) Copy of attendance register w.e.f. October, 2010 to
May, 2014 which are Mark A;
(vi) Copy of attendance sheet w.e.f. May, 2011 to
November, 2018 which is Mark B.
The workman was not cross-examined by the
management despite repeated opportunities and right of the
management to cross-examine the workman was closed vide
order dated 17.12.2021.
6. The management did not examine any witness in its
evidence despite opportunities and vide order dated 25.02.2022,
the management's evidence was closed and the matter was
adjourned for final arguments.
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7. I have heard the final arguments addressed by the
AR for the workman. None appeared on behalf of the
management to address the final arguments. I have also gone
through the records. My issue wise findings are as under:-
Issue No.1
Whether the management is an 'Industry' as defined under
Industrial Disputes Act? OPW
The onus to prove this issue was on the workman. It
is claimed that the workman was appointed by the management
as 'Electrician'; no appointment letter was issued nor any legal
facility was extended to the workman. The management on the
other hand reiterated that this case is bad for non joinder of the
necessary parties as the service provider has not been impleaded;
the management is a office of State of Haryana situated at
Haryana Bhawan, New Delhi; its function is to provide stay
facilities to the VIP and Govt. officials; management is not an
Industry and this case is not maintainable accordingly. It is
further claimed by the management that the workman was under
direct supervision and control of service provider/outsourcing
agency and was never appointed by the management.
8. The Industrial Disputes Act was passed to make
provision for the investigation and settlement of industrial
disputes and for certain other purposes appearing in the Act. The
emphasis in the Act is primarily upon the investigation and
settlement of industrial disputes. The expression "industrial
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dispute" is defined by Section 2(k) as follows:
"industrial dispute" means any dispute or difference between
employers and employers or, between employers and workmen,
or between workmen and workmen, which is connected with the
employment or non-employment or the terms of employment or
with the conditions of labour, of any person".
A "Industry" is defined in cl. (j) as follows:-
"industry" means any business, trade, undertaking, manufacture
or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of
workmen". The word "employer" is defined by cl. (g) of the
section as:
"employer means-
(i) in relation to an industry carried on by or under the authority
of any department of the Central Government or a State
Government, the authority prescribed in this behalf, or where no
authority is prescribed, the head of the department-
(ii) in relation to any industry carried on by or on behalf of a
local authority, the chief executive officer 'of that authority;"
"Workman" is defined by cl. (s) of the section and " means any
person (including an apprentice) employed in any industry to do
any skilled or unskilled manual supervisory, technical or
clerical, work for hire Cr reward. whether the terms of
employment be expressed or implied, and for the purpose of any
proceeding under this Act in relation to an industrial dispute,
includes any person who has been dismissed, discharged Or
retrenched in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or retrenchment has led
to that dispute, but does not include any such person-
(i) who is subject to the Army Act 1950, or the Air Force Act,
1950, or the Navy (Discipline) Act, 1934: or
(ii) who is employed in the police service or as an officer or
other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative
capacity; or
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(iv) who, being employed in a supervisor-- capacity, draws
wages exceeding five hundred rupees per mensem or exercises,
either by the nature of the duties attached to the office or by
reason of the powers vested in him, functions mainly of a
managerial nature."
9. There is no dispute that the management herein is
the Haryana Bhawan. The question is whether the Management
can be said to be an industry for the application of the Industrial
Disputes Act, 1947. The definition of 'employer' in the Act
clearly shows that a local authority may become an employer if it
carries on an industry. This means that a municipality, 'if it
indulges in an activity which may be properly described as
industry, may be involved in an industrial dispute. Local bodies
are primarily subordinate branches of governmental activity.
They function for public purposes but some of their activities
may come within the calling of employers although the
municipalities may not be trading corporations. Local authorities
take away part of the affairs of Government in local areas and
they exercise the powers of regulation and subordinate taxation.
They are' political sub-divisions and agencies for the exercise of
governmental functions. But if they indulge in municipal trading
or business or have to assume the calling of employers they are
employers whether they carry on or not business commercially
for purposes of gain or profit. (Secretary, Madras Gymkhana
Club vs Management of The Gymkhana Club decided on 03
October, 1967; 1968 AIR 554, 1968 SCR (1) 742).
10. Hon'ble Mr. Justice Krishna Iyer has construed
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various expressions used in the definition of industry for
recording following conclusion in Bangalore Water Supply and
Sewerage Board Vs. A. Rajappa, (1978) 2 SCC 213. Relevant
extract of the judgment reads as under:
"140. Industry as defined' in Sec.2(j) and explained in Banerji's,
has a wide import.
"(a) Where (i) systematic activity, (ii) organized by cooperation
between employer and employee (the direct and substantial
element is chimerical) (iii) for the production and/or distribution
of goods and services calculated to satisfy human wants and
wishes (not spiritual or religious but inclusive of material things
or services geared to celestial bliss i.e., making, on a large scale
prasad or food), prima facie, there is an 'industry' in that
enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be
the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature
of the activity with special
emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to
be one because of philanthropy animating the undertaking."
"141. Although section 2(j) uses words of the widest amplitude
in its two limbs, their meaning cannot be magnified to overreach
itself.
"(a) 'Undertaking' must suffer a contextual and associational
shrinkage as explained in Banerji and in this judgment; so also,
service, calling and the like. This yields the inference that all
organized activity possessing the triple elements in I, although
not trade or business, may still be 'industry' provided the nature
of the activity, viz. The employer-employee basis, bears
resemblance to what we find in trade or business. This takes into
the fold of 'industry' undertakings, callings and services,
adventures 'analogous to the carrying on of trade or business'.
All features, other than the methodology of carrying on the
activity viz. In organizing the cooperation between employer
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and employee, may be dissimilar. It does not, matter, if on the
employment terms there is analogy."
"142. Application of these guidelines should not stop short of
their logical reach by invocation of creeds, cults or inner sense
of incongruity or outer sense of motivation for or resultant of the
economic operations. The ideology of the Act being industrial
peace, regulation and resolution of industrial disputes between
employer and workmen, the range of this statutory ideology
must inform the reach of the statutory definition. Nothing less,
nothing more."
"(a) The consequences are (i) professions, (ii) clubs, (iii)
educational institutions, (iv) cooperatives, (v) research institutes,
(vi) charitable projects, and (vii) other kindred adventures, if
they fulfill the triple tests listed in I, cannot be exempted from
the scope of Section 2(j).
(b) A restricted category of, professions, clubs, cooperatives
and even gurukulas and little research labs, may qualify for
exemption if, in simple ventures, substantially and, going by the
dominant nature criterion, substantively, no employees are
entertained but in minimal matters, marginal employees are
hired. Without destroying the non-employee character of the
unit.
(c) ....................."
Finding: In view of the above referred law, it is held that the
management is an 'industry' as defined under Section 2 (j) of I. D.
Act, 1947. Issue No.(1) is, therefore, decided against the
management.
Issue no.2 to 4:-
(2) Whether there existed a relationship of employer and
employee between the workman and present management? OPW.
(3) Whether the present reference is bad for non-joinder
of the necessary parties? OPM
(4) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is the workman entitled for? OPW.
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The onus to prove the issue no.2 and 4 was on the
workman whereas the issue no.3 remained to be proved by the
management. All these issues shall be decided together being
inter-related.
11. It is no longer res-integra that the burden of proving
the employer-employee relationship primarily rests upon the
person who asserts its existence. In a situation where a person
asserts to be an employee of the management which the
management denies, the duty primarily rests upon the person so
asserting to give positive evidence in his favour and discharge his
initial burden. Once such a person has given positive evidence in
his favour, only then, the burden would shift on the management
to give evidence to counter such claims. This is because it is
always easier to prove positive facts than a negative.
12. In the judgment titled Automobile Association
Upper India v. P.O. Labour Court-II & Anr., reported as 130
(2006) DLT 160, Hon'ble Delhi High Court has held that
"engagement and appointment of the workman in service can
be established either by direct evidence like existence and
production of appointment letter or written agreement, or by
circumstantial evidence of incidental or ancillary records, in
nature of attendance register, salary register, leave records,
deposit of PF contribution, ESI etc. or even by examination
of co-worker who may depose before the court that the
workman was working with the management".
13. The Hon'ble Supreme Court in "Workman of Nilgiri
Coop. Mkt. Society Ltd. Vs State of Tamil Nadu", reported as
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AIR 2004 SC 1639 held as under:-
"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 employer-employee
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."
14. In 'Kanpur Electricity Supply Co. Ltd. Vs Shamim
Mirza', (2009/ 1 SCC 20, the Hon'ble Supreme Court held as
under :-
"20. It is trite that the burden to prove that a claimant
was in the employment of a particular management,
primarily lies on the person who claims to be so but the
degree of proof, so required, varies from case to case. It
is neither feasible nor advisable to lay down an abstract
rule to determine the employer - employee relationship.
It is Jai Prakash Vs M/s J.K. Sales Corporation
19.12.2019 Page No. 15 of 21 essentially a question of
fact to be determined by having regard to the cumulative
effect of the entire material placed before the
adjudicatory forum by the claimant and the
management."
15. Similarly, the Hon'ble Delhi High Court in case
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Babu Ram Vs Govt. of NCT of Delhi & Anr., 247 (2018) Delhi
Law Times 596 was pleased to observe :
"it is well settled principle of law that the person, who
sets up a plea of existence of relationship of employer
and employee, the burden would be upon him. In this
regard, the Hon'ble Supreme Court in the case of
Workmen of Nilgiri Coop. Mkt. Society Ltd. V. State of
T.N. and Others, (2004) 3 SCC 514 has approved the
judgment of Kerala and Calcutta High Court, where the
plea of the workman that he was employee of the
company was denied by the company and it was held
that it was not for the company to prove that he was not
an employee. Para 48 to 50 of the said judgment reads
as under :
"In N.C. John v. Secy., Thodupuzha Taluk Shop and
Commercial Establishment Workers' Union & Ors,
(1973 Lab IC 398) the Kerala High Court held : The
burden of proof being on the workmen to establish the
employer employee relationship an adverse inference
cannot bedrawn against the employer that if he were to
produce books of accounts they would have proved
employer employee relationship.
In Swapan Das Gupta & Ors. v. The First Labour Court
of W.B. (1976 Lab IC 202 (Cal)) it has been held :
Where a person asserts that he was a workman of the
company and it is denied by the company, it is for him
to prove the fact. It is not for the company to prove that
he was not an employee of the company but of some
other person.
The question whether the relationship between the
parties is one of employer and employee is a pure
question of fact and ordinarily the High Court while
exercising its power of judicial review shall not interfere
therewith unless the finding is manifestly or obviously
erroneous or perverse."
And observed:
"The petitioner has placed on record his self supporting
affidavit, demand notice and postal receipts in evidence
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which does not prove his relationship with the
respondent as employee and employer. In these
circumstances, I do not find that the impugned Award suffers from any illegality or perversity. There is no merit in the petition. The same is accordingly dismissed with no order as to costs."
16. The question regarding onus and degree of proof for a claim of employment of a workman with the management was examined in the case of Bank of Baroda v. Ghemarabhai Harijibhai Rabari reported as 2005 (10) SCC 792. It was held that onus of proof was on the claimant, namely the workman who claimed to have been employed by the management. It was also held that the degree of proof is vary from case to case and if the workman had established a prima facie case, it would be the responsibility of the management to rebut the same.
In view of afore-said law, it was for the claimant to prove that he was employee of the management but the claimant failed to bring any documentary evidence on record to prove the contentions. The statement of claim filed by the workman along- with defence of management has been mentioned at the outset. The workman claimed that he worked with the management since 20.02.2012 as 'Electrician'; his last drawn salary was Rs.10600/- per month; his services were terminated on 18.08.2016. The witness/workman has not filed any document regarding his appointment or payment of any salary as claimed by him. The witness has not produced any documentary proof regarding his employment with the management for the period as claimed in statement of claim. The workman has not called even LIR No.1366/2019 Sh. Navin Khatri v. M/s. S. D. E. Electric PWD, Sub-Division B&R Page No. 15 of 18 his co-workers to examine and prove that he ever worked with management as claimed by him. None of the documents relied by the workman are in respect of his employment or payment of salary by the management. No document was summoned or produced by the workman in respect of his employment with the management or payment of any salary. In fact, the workman did not take any steps to summon or prove any document regarding his employment, attendance or payment of wages. The documents Mark A and Mark B are not admissible in evidence as the same have not been proved. Merely oral and bald averments by the workman is not sufficient to prove that he was employed with the management as mentioned in the claim. There is no admission by the management and management has denied that the claimant/workman was its employee or paid any salary as claimed.
17. In the present case, there is absolutely no document from which it can be ascertained that the workman has worked or paid any amount by the management herein. There is also no document from which it can be ascertained that the workman herein was on the rolls of the management. With the above deficiencies in the evidence of the workman herein, it can not be said that onus shifted on the management. I have perused all the documents relied by workman in support of his claim and none of these documents prove that the workman was the employee of management as claimed in the statement of claim.
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18. No doubt that claimant has examined himself as WW-1 vide his affidavit Ex.WW-1/A, wherein, he has claimed that he worked with the management for the said period and his services have been illegally terminated by the management on 18.08.2016. The claimant has failed to bring on record any cogent documentary evidence to prove that he worked in the management since 20.02.2012 till 18.08.2016. Neither the testimony of the claimant nor any of the documents relied / produced by him are sufficient to hold that the claimant had worked in the management for the said period, as claimed by him in the statement of claim. Therefore, this court is of the considered opinion that the self serving affidavit Ex.WW-1/A of claimant and the documents relied by him are not sufficient to conclude that claimant had worked in the management for the period as claimed by him. The workman has failed to implead the service provider as necessary party to the present statement of claim to the reasons best known to him. Issues No.2 & 4 are accordingly decided against the workman and in favour of the management whereas the issue No.3 is decided in favour of management.
19. Consequent to the decision of Issue No.2 to 4, the workman is not entitled for any relief. Statement of claim is, therefore, dismissed. Reference is answered in the aforesaid terms.
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20. Digitally signed copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules.
21. File be consigned to the Record Room after compliance of necessary legal formalities. Digitally signed by GORAKH GORAKH NATH NATH PANDEY Date: 2022.08.03 PANDEY 15:46:10 +0530 Announced in the open court (Gorakh Nath Pandey) on 01.08.2022 Addl. District & Sessions Judge, Presiding Officer Labour Court- IV, Rouse Avenue District Courts.
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