Delhi District Court
Sunny Chauhan vs M/S Delhi Tourism And Trasportation ... on 7 June, 2024
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 7922/2016
CNR No. DLCT13-005756-2016
In the matter of:
Sh. Sunny Chauhan
S/o Sh. Bharam Singh Chauhan
R/o H. No. 168, Dhaka Village,
Near New Chaupal, Delhi-110009
Mobile No.: 9818040177
Through
Hindustan Engineering and General Mazdoor Union
Head Office: D-2/24, Sultanpuri, Delhi
.....Claimant/Workman
Authorized Representative of the Claimant/Workman:
Name: Sh. Kailash Kumar Jonwal
Mobile no. 9810079644
VERSUS
1. M/s Delhi Tourism and Transportation Development
Corporation
18A, DDA SCO Complex, Defence Colony, New Delhi
2. M/s Competent Security Service
1, Shiv Mandir, Jamrudpur,
Greater Kailash, Part-I, New Delhi
3. M/s Gaurav Security Service
A-61, Gali No.6, West Vinod Nagar,
New Delhi-110093
.....Managements
Authorized Representative of the Management no.1:
Name: Sh. Uday Seth
Mobile no. 9718680536
E mail ID of the management no.1: Not Provided
LIR No. 7922/2016
Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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Authorized Representative of the Management no.2:
Name: Sh. Vinay Kumar Bhasin and Sh. Raman Kumar Thakur
Mobile no. Not Provided
E mail ID of the management no.2: Not Provided
Authorized Representative of the Management no.3:
Name: Sh. Mukesh Sharma
Mobile no. 9868761320
E mail ID of the management no.3: Not Provided
Date of Receipt of Reference : 05.05.2016
Date of Final Arguments : 22.05.2024 & 07.06.2024
Date of Award : 07.06.2024
AWARD
1. A reference was received from the Joint Labour
Commissioner (Central District), Labour Department,
Government of NCT of Delhi vide its order No. F-24(37)/
Lab./CD/16/228 dated 03.05.2016, under Section 10(1)(c)
and 12(5) of the Industrial Disputes Act, 1947 regarding an
industrial dispute between Sh. Sunny Chauhan (hereinafter
referred to as 'claimant/workman') and the managements
of M/s Delhi Tourism and Transportation Development
Corporation (hereinafter referred to as 'management
no.1'), M/s Competent Security Service (hereinafter
referred to as 'management no.2') and M/s Gaurav
Security Service (hereinafter referred to as 'management
no.3'), with the following terms of reference:
"Whether the services of workman Sh. Sunny
Chauhan S/o Sh. Braham Singh Chauhan, aged
about 33 years 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?"
LIR No. 7922/2016
Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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2. After receipt of reference, notice was issued to the
workman after which the claimant/ workman filed the
statement of claim on 02.06.2016.
Facts as per the statement of claim
3. Briefly stated, the claimant/workman has asserted that he was appointed with management no.1 on 01.05.2002 as a helper at the last drawn salary of ₹3,520/- per month for a 12 hour duty at wine shop, Jhandewalan. It has been further asserted that without any transfer letter, he was transferred to the management no.2 on 01.02.2003 where the management no.2 provided him the salary of ₹3,450/- per month. It has been further asserted that the management no.2 availed the services of the claimant/workman from 01.02.2003 till 14.07.2011, after which he was transferred to management no.3 on 15.07.2011, without any transfer letter, with his last drawn salary being ₹7,600/-. It has also been asserted that the claimant/ workman performed all his duties at one place.
4. It has been further asserted that from the date of appointment, no appointment letter, wages slip, arrears of minimum wages, attendance card, identity card, casual and earned leaves, bonus, ESI, PF, 4 hours overtime, regularization benefit, etc., under the labour laws were provided to the claimant/workman upon which the claimant/workman and other workmen filed a Civil Writ Petition before the Hon'ble Delhi High Court during the LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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pendency of which, the services of the claimant/ workman were terminated on 01.08.2014, illegally, without any written reason, without payment of overtime wages and without any approval, in violation of the labour laws i.e. Section 25F, Section 25 G, Section 25(oo), Section 9A and Section 33 (1)(b) of the Industrial Disputes Act, 1947.
5. It has also been asserted that despite the permanent nature of work, the management no.1 was getting the work of helper done through contractors, even though the management no.1 continued to have supervision and control over the claimant/workman. It has also been asserted that the management no.1 did not have any registration to get the work done from the contractor, and the contractors i.e. management no. 2 and 3 did not have any license. It has also been asserted that the agreement between the management no.1 and management no.2 and 3 was sham and camouflage.
6. It has been further asserted that the management changed the contractors from time to time to bring a break in the service of the claimant/workman to deprive him of his legal benefits. It has also been asserted that no seniority list was maintained by the management, and juniors were appointed in place of the claimant/workman, in violation of the Industrial Disputes Act.
7. It has been further asserted that the demand letter sent by the claimant / workman to the managements on 24.07.2015 LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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by registered AD seeking reinstatement with back wages and other legal benefits was not replied to by the managements, the managements did not appear before the Assistant Labour Commissioner and even the conciliation proceedings failed, after which the reference was sent to the Court.
8. It has also been asserted that the services of the claimant / workman were terminated without any opportunity of being heard, without any inquiry and without any notice. It has been further asserted that the claimant/workman is unemployed since the termination of his services and without any source of income, hence, the present claim seeking reinstatement with managements with continuity of service with full back wages with 18% interest.
Facts as per the written statement of the management no.1
9. In their written statement, the management no.1 has denied the existence of employer-employee relationship between them and the claimant/workman. It has been asserted that the claimant/workman has stated himself to be employee of the management no.3 and his services were terminated by the management no.3.
10.It has been further asserted that the Writ Petition (Civil) No. 2236/14 filed before the Hon'ble Delhi High Court titled 'Vikas Sharma & Ors. v/s Government of NCT of Delhi & Ors.' seeking directions for regularization of services of the claimant and a permanent post was LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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dismissed by the Hon'ble Delhi High Court vide order dated 09.09.2014 on the grounds that the claimants had not been able to establish that they were in the service of the DTTDC; that the documents placed on record by the claimant revealed that they had been engaged by a private agency by the name of Gaurav Security Services, and that it was the said agency, which was paying the claimant his monthly emoluments.
11.It has been further asserted that the present case was covered under Section 2(oo) (bb) of the Industrial Disputes Act and was beyond the scope of Section 25F, Section 25G, and Section 25H of the Industrial Disputes Act.
12.On merits, it has been asserted that the claimant/workman was appointed as a helper on 01.05.2002 at Jhandewalan Country Liquor Vend by the management no.1 on a contractual basis and his services were availed initially for a period of 6 months, from 01.05.2002 to 31.10.2002, which were extended for further period of three months w.e.f. 03.11.2002 to 31.01.2003 i.e. for a total period of 9 months with two days' break in service in November 2002. It has been further asserted that the appointment letter itself was categorical that the appointment was on contract basis and that the claimant/workman would not claim any regular / permanent employment in the corporation. It has been denied that the claimant/workman was transferred at the behest of management no. 1 to management no.2 or from management no. 2 to management no.3. It has also LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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been asserted that the claimant/workman was not an employee of the management no.1 at any point of time after 31.01.2003 when his services came to an end with the efflux of time as mentioned in the appointment letter/ memorandum.
13.It has been further asserted that in accordance with the recommendation of the 6th Pay Commission, the management no.1 had the power to outsource the recruitment in Multitasking Staff Grade (MTS) and it was the prerogative of management no.1 to directly engage the employees or sub-delegate its work through the contractor. It has been further asserted that the management did not interfere or direct the management no.2 to engage a particular employee. It has also been asserted that the management had no role in directly recruiting the claimant/ workman and thus there was no mandate upon the management to maintain a seniority list.
14.All the remaining assertions made in the statement of claim including as to the workman/ claimant having been terminated by the management no.1 during the pendency of the Writ Petition before the Hon'ble Delhi High Court have been denied on merits.
Facts as per Rejoinder to the written statement of management no.1
15.In the rejoinder, the claimant/workman denied the averments of the written statement and reiterated the contents of his statement of claim. It has been further LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
Page No. 7 of 28POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:33:07 +0530 asserted that the management had complete control and supervision over the contractor who worked as per the directions of the management and that the management no. 1 appointed the contractor only for the purposes of division of salary. It has been further asserted that despite regular/ permanent work being available at the establishment of the management, the management was taking work through contractor, without any registration or license of the contractor in violation of the Contract Labour (Regulation and Abolition) Act. It has been further asserted that in the Writ Petition no. 2236/2014, in the order dated 09.09.2014 passed by the Hon'ble Delhi High Court, liberty had been granted to the petitioners to seek the remedies against the private contractor and also against the DTTDC as may be permissible. It has been reiterated that no domestic enquiry was conducted by the management against the claimant/ workman nor any reason was informed to him.
Facts as per the reply of management no.2
16.In their reply, the management no.2 has asserted that the claimant/workman had joined the management no.2 on probation on 01.02.2003 and after July 2011, he started absenting from his duties without any reason or intimation upon which he was asked to take his full and final settlement and that he received the full and final claim and also withdrew his EPF. It has been further asserted that the management no.2 never terminated the services of the claimant/workman. It has also been asserted that the management no.2 completed its work with the LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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management no.1 on 14.07.2011, and the claimant/ workman left his job with the management no.2 as per his choice after taking full and final amount and withdrawing his EPF contribution. All the remaining averments made in the statement of claim have been denied on merits.
Facts as per Rejoinder to the reply of management no.2.
17.In the rejoinder, the claimant/workman denied the averments of the reply and reiterated the contents of his statement of claim. It has been asserted that when the claimant/ workman was appointed with the managements, the managements had obtained his signatures by fraud on blank papers, vouchers with receipt, printed performa etc, which were being misused by them. It has been further asserted that the claimant/workman had never given any resignation letter or received any full and final payment. It has been further asserted that when the tender of management no.2 was not renewed, his signatures were obtained under pressure on the PF form, which were deposited by the officials of the management at the PF office. It has been reiterated that the claimant/ workman did not absent himself but was terminated on 01.08.2014.
18.It has been further asserted that despite regular/permanent work being available at the establishment of the management, the management was taking work through contractor, without any registration or license of the contractor in violation of the Contract Labour (Regulation and Abolition) Act. It has been further asserted that in the LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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Writ Petition no. 2236/2014, in the order dated 09.09.2014 passed by the Hon'ble Delhi High Court, liberty had been granted to the petitioners to seek the remedies against the private contractor and also against the DTTDC as may be permissible. It has been reiterated that no domestic enquiry was conducted against the claimant/workman nor any reason was informed to him.
Facts as per the written statement of management no.3
19.In their written statement, the management no.3 has asserted that the claimant/workman started working with them since 15.07.2011 till 20.07.2014. It has been further asserted that the claimant/workman had been employed on specific terms and conditions that his contract period would be for six months which could be terminated before the expiry of such period without any reason. It has been further asserted that there was a contract between management no.1 and 3 from 15.07.2011 till 15.01.2015, and that at the time of the execution of the contract dated 15.07.2011, the claimant/workman was working under the management no.2.
20.It has been further asserted that on 20.07.2014, the claimant/workman voluntarily resigned due to family problems, which was accepted by the management on 20.07.2014 after which the management no.3 cleared the accounts of the claimant/workman and paid him a sum of ₹65,200/- in cash vide receipt dated 07.08.2014, which included seven months' salary from July 2014 to January LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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2015 @ ₹ 7,600/-, ₹12,000/- towards bonus, overtime, etc, which amount was paid in the presence of one Mr. Pappu Kumar. It has been further asserted that the tender of the management no.3 had already expired on 15.01.2015. It has been further asserted that the claimant/workman was never a regular employee of the management no.3 and was never terminated by them. All the remaining of averments made in the statement of claim have been denied on merits.
Facts as per Rejoinder to the written statement of management no.3
21.In the rejoinder, the claimant/ workman denied the averments made in the written statement and reiterated the contents of his statement of claim. He has also reiterated that he was working with the management no.1 and 2, even prior to the contract of management no.3, and that the contractor had been appointed only for division of the salary. It has been further asserted that at the time of the contract with the managements, blank ESI/PF forms, vouchers with receipts, printed proforma, etc. were got signed from the claimant/workman which were being misused. It has been further asserted that the claimant/ workman never gave any resignation nor received any full and final payment. It has been further asserted that the management had with held the salary of seven months, and had stated that they will not release the same until he signed the resignation letter and full and final payment, due to which the claimant/workman signed on the blank papers, vouchers with receipts, printed proformas etc. under compulsion, but he never received any settlement of LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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his dues. It has been further asserted that the claimant/ workman was terminated by the managements on 01.08.2014. On merits, similar grounds were raised as were raised in the rejoinder to the written statement/ reply of the management no.1 and 2.
Issues
22.The following issues were then framed by the Ld. Predecessor on 10.10.2017:
1. Whether there is any relationship of employer and employee between the workman and management no.1? OPW
2. Whether the claimant has left the job as per his choice after taking full and final amount and also withdraw his EPF contributions? OPM2
3. Whether the claim of the workman is not maintainable?
4. As per terms of reference.
5. Relief Workman Evidence
23.To prove his case, the workman / claimant examined himself as WW1 and tendered his evidence by way of affidavit i.e. Ex. WW1/A on similar lines as his statement of claim. He also relied upon the following documents :
Sl no. Description of Document Exhibit/ Mark
1. Undated Demand Letter Ex.WW1/1
2. Postal Receipts ExWW1/2 to Ex WW1/4
3. Copy of Office order dated Ex. WW1/5 18.07.2013.LIR No. 7922/2016
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4. Reply of RTI dated 04.09.2013 Ex.WW1/6 given by management no. 1.
5. Copy of tracking reports Mark A, Mark B and Mark C
6. Copy of statement of claim filed Mark D before the Conciliation Officer.
7. Joining Letter given by workman to Mark E management no. 1.
8. Copy of attendance maintained by Mark F management no. 1.
9. Absentee Statements Mark G (Colly.) (17 pages)
10. Letter written by the workmen to Mark H the Managing Director Ms. Reena Ray of management no. 1 for making them permanent with noting by Mr Ashok Gupta
11. Copy of salary slip issued by Mark I management no. 1
12. Letter dated 13.05.2011 by Mr. Mark J Sandeep Mishra to management no.
1 regarding regularization of service.
13. Letter written to Arvind Kejriwal, Mark K Chief Minister for regularization of service.
14. Letter dated 27.04.2011 issued by Mark L Deputy Secretary, Public Grievances, Chief Minister's Office to the management no. 1.
15. Notice dated 14.06.2013 issued by Mark M General Manager and First Appellate Authority.
16. Letter dated 30.01.2014 issued by Mark N Secretary (Services), Service Department.
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17. Letter dated 24.05.2012 sent by Mr. Mark O Amrish Singh Gautam to the chairman, Management no. 1.
18. Letter dated 05.07.2011 by Mark P Shabnam Riyaz to Mr. Manish.
19. Letter dated 28.06.2011 by the Again workman to management no. 1. marked as Mark O
20. Letter to Mr. G.G. Saxena, Chief Again Manager of Management no. 1 marked as Mark P 21 Letter written by the workmen to Mark Q the Managing Director Ms. Reena Ray of management no. 1 for making them permanent.
22 Copy of order dated 09.09.2014 Mark R passed by Hon'ble Delhi High Court.
WW1 claimant/workman was duly cross-examined on behalf of the management no.1, during which inter-alia, a memorandum dated 29.01.2003 i.e. Ex. WW1/M-1/1 was put to him.
24.Vide order dated 03.02.2023, the right of the management no. 2 and 3 to cross-examine the WW-1 claimant/workman was closed by the Ld. Predecessor.
Management Evidence
25.Only management no. 1 led its evidence and examined MW-1 Mr. Kulvinder Singh who tendered his evidence by way of affidavit i.e. Ex. MW1/A and also relied upon the following documents:
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Sl no. Description of Document Exhibit/Mark
1. Order dated 09.09.2014 passed by Ex.MW1/1 the Hon'ble Delhi High Court.
2. Memorandum dated 05.06.2002 Ex.MW1/2 issued by management no. 1.
3. Memorandum dated 29.01.2003 Ex.MW1/3
4. Circular dated 30.01.2003 Ex.MW1/4 MW1 was duly cross-examined on behalf of the claimant/workman.
26.Final arguments were then advanced on behalf of the workman as well as the management no.1 by their respective Authorized Representatives.
27.The final arguments as advanced have been carefully considered along with the evidence on record and after careful consideration of the same, issue wise findings are as under:
Issue No.1:Whether there is any relationship of employer and employee between the workman and management no.1?
28.The onus to prove this issue was on the claimant/workman as it a settled proposition of law that the burden to prove a fact is on the one who asserts the same and it is the claimant/ workman who has asserted the existence of such relationship.
29.Strength for this interpretation is drawn from the judgment of the Hon'ble Delhi High Court in Babu Ram v. Govt.
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(NCT of Delhi), 2018 SCC OnLine Del 7243, where it has been observed that:
" 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., (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:--
"48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, (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 be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.
49. In Swapan Das Gupta v. The First Labour Court of W.B. (1976 Lab IC 202(Cal)) it has been held:
Where as 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."
(Emphasis supplied)
30.In the present case, WW1 claimant/workman has testified that he had been appointed with the management no.1 on 01.05.2002 as a helper. He has also testified that he was transferred to the management no.2 on 01.02.2003 where LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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he worked till 14.07.2011 and then he was transferred to the management no.3 on 15.07.2011. He has further testified that he was terminated by the managements on 01.08.2014.
31.However, the claimant/workman has not filed even a single document to prove either his nature of initial appointment nor to prove that he continued to be an employee of the management no.1 since 01.02.2003 till 01.08.2014 and there is no admission by the management no.1, in its pleadings, as to the claimant/ workman being its employee even after 31.01.2003 i.e. after his transfer to the management no.2.
32.On the other hand, the management no.1 has relied upon the memorandum i.e. Ex MW1/2 dated 05.06.2002, as per which the claimant/ workman had been appointed with the management no.1 on contractual basis w.e.f. 01.05.2002 for a period of six months and Ex MW1/3 i.e. the memorandum dated 29.01.2003 whereby the appointment of the claimant/ workman on contract basis was extended w.e.f. 03.12.2002 till 31.01.2003. They have also relied upon the memorandum dated 30.01.2003 i.e. Ex MW1/4 as per which no contract appointments were to be made by the management no.1 on the liquor vends beyond 31.01.2003.
33.The documents i.e. Ex MW1/2 to Ex MW1/4 have not been challenged by the claimant/workman during the LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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entire cross-examination of MW1, nor is it his stand that they are false documents. Thus, with the workman/claimant not having even controverted the said documents as per which his appointment with the management no.1 was only for a fixed period of time i.e. for a period of six months w.e.f. 01.05.2002 which was extended w.e.f. 03.12.2002 till 31.01.2003, and not beyond the same, the factum of his employment with the management no.1 having ended with the efflux of time stands proved.
34.It has been argued on behalf of the claimant/workman that as the management no.1 continued to have supervision and control over the claimant/ workman, even though they were getting the work done through contractors, it proved that the claimant/workman was an employee of the management no.1. In support of this argument, reference has also been made to the cross-examination of MW1 Sh. Kulvinder Singh, wherein he has admitted that the claimant/ workman was working under the supervision and control of the Manager of the liquor vend.
35.In respect of this argument, it is pertinent to note here that it is a settled proposition of law that mere supervision does not prove the existence of a relationship of employer- employee between the parties as other factors are also to be looked into before such conclusion can be arrived at.
36.In Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407, LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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the Hon'ble Apex Court has enumerated the factors to be considered to establish the existence of the employer- employee relationship as under:
"Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia, (i) who appoints the workers; (ii) who pays the salary/ remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action; (v) whether there is continuity of service; and (vi) extent of control and supervision, i.e. whether there exists complete control and supervision."
(Emphasis supplied)
37.In Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635, it has been observed held by the Hon'ble Supreme Court that:
"10. ...... Two of the well-recognized tests to find out whether the contract labour are the direct employees of the principal employer are (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that first respondent is a direct employee of the appellant.
11. On a careful consideration, we are of the view that the Industrial Court committed a serious error in arriving at those findings. In regard to the first test as to who pays the salary, it placed the onus wrongly upon the appellant. It is for the employee to aver and prove that he was paid salary directly by the principal employer and not the contractor. The first respondent did not discharge this onus. Even in regard to second test, the employee did not establish that he was working under the direct control and supervision of the principal employer. The Industrial Court misconstrued the meaning of the terms `control LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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and supervision' and held that as the officers of appellant were giving some instructions to the first respondent working as a guard, he was deemed to be working under the control and supervision of the appellant.
12. The expression `control and supervision' in the context of contract labour was explained by this court in International Airport Authority of India v. International Air Cargo Workers Union [2009 (13) SCC 374] thus:
"38....If the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/ allotted/ sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/ allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/ sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
13. Therefore we are of the view that the Industrial Court ought to have held that first respondent was not a direct employee of the appellant, and rejected the application of the first respondent."
(Emphasis supplied) LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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38.Hence, it is seen that two of the well-recognized tests to find out whether the contract labour are the direct employees of the principal employer are whether the principal employer pays the salary instead of the contractor; and whether the principal employer controls and supervises the work of the employee.
39.In the present case, there is not even a single assertion/ averment by the claimant/workman that he was being paid salary by the management no.1 after 31.01.2003 nor any document has been produced by him to prove that the management no.1 paid his salary till the date of termination of his services. Though in Ex WW1/A, the claimant/ workman had testified to the effect that since the date of his appointment (as opposed to the date of his transfer), he had been asking the management inter-alia, for wages slip etc. which were not given, it implies that he was not given any wages slip by the management no.1 since his initial appointment with them on 01.05.2002, yet the claimant/workman has himself relied upon copy of salary slips issued by management no. 1 i.e. Mark I. However, even from the said salary slips, none has been pointed out as pertaining to the period after 31.01.2003 till 2014, so as to prove the factum of payment of salary of claimant/ workman by the management no.1.
40.It is also noted that even in his application under Section 11(3)(b) of the Industrial Disputes Act, the claimant/ LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
Page No. 21 of 28POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:34:51 +0530 workman had asked for the record only for the period of 2002 to 2003 from the management no.1 perhaps being cognizant of the fact that no further wages record of the claimant/workman would be available with the management no.1 since he was not an employee of the management no.1 subsequent to 31.01.2003 and hence, even the non-production of wages record of 2002-2011 by the MW1 during his cross-examination does not assist the claimant/workman in any manner.
41.Hence, the factum of payment of salary to the claimant/ workman by the management no.1 remains unproved.
42.In respect of the supervision and control over the claimant/ workman, it is duly noted that though WW1 claimant/ workman has testified that there was control and supervision of the management no.1 over him, he has led no further evidence to prove the extent of such control and supervision nor he has elucidated the nature and extent of such control. It is also noted that even though MW1 has admitted in his cross-examination that the claimant/ workman was working under the supervision and control of the Manager of the liquor vend, in the absence of the nature and extent of supervision having been brought on record, the admission of MW1 does not suffice to prove the factum of the claimant/ workman being an employee of the management no.1 as as in view of the legal proposition laid down in Bengal Nagpur Cotton Mills v. Bharat Lal, (Supra), it was for the claimant/workman to prove that the LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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extent thereof. In the absence of the such evidence having been led by the claimant/workman, it cannot be presumed that the control and supervision of the management no.1 over the claimant/ workman was complete and thus, the factum of the claimant/workman being under complete control and supervision of the management no.1 remains unproved.
43.It has been argued on behalf of the claimant/workman during final arguments that as the MW1 had admitted that the claimant/workman was working continuously from 2002 to 2014, it proved the existence of relationship of employer-employee between the management no.1 and the claimant/ workman. However, there is no merit in the argument as raised since mere admission as to the claimant/workman working during the aforesaid period does not prove that he was working as an employee of the management no.1 and not of the contractors i.e. management no.2 and 3.
44.Thus, considering that the initial onus was on the claimant/ workman to prove his employment with the management no.1 till 2014 and not for the management to disprove the same, the mere admission of MW1 as to the claimant/ workman working from 2002 to 2014, does not assist the claimant/workman in discharge of his burden in proving the existence of employer-employee relationship between the management no.1 and the claimant/workman.
LIR No. 7922/2016Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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45.Another argument was advanced on behalf of the claimant/workman as to the agreement/ contract between the managements being sham and bogus as MW1 had himself admitted that no letter had been given by the management regarding appointing the workman through contractor and also because MW1 has also admitted that no agreement between the management no.1 and 2 and 3 has been filed in the court.
46.In respect of these arguments, it is noted that the claimant / workman has failed to demonstrate as to what would have been the occasion for the management no.1 to issue appointment letter regarding appointing the workman through contractor as the same would be the prerogative of the contractors and not of the management no.1.
47.Further, in respect of the admission of MW1 as to no agreement between the management no.1 and 2 and 3 having been filed in the court also does not assist the claimant/ workman as the initial onus was upon the claimant/ workman to prove his continued employment with the management no.1 and not for the management no.1 to disprove the same but the claimant/workman has failed to discharge its onus.
48.In view of the discussion as above, it is held that the claimant/ workman has failed to discharge his burden and prove the existence of relationship of employee-employer between him and the management no.1 after 31.01.2003.
LIR No. 7922/2016Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
Page No. 24 of 28POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:35:13 +0530 The issue no. 1 is accordingly decided against the claimant/ workman and in favour of the management no.1.
Issue no. 2: Whether the claimant has left the job as per his choice after taking full and final amount and also withdraw his EPF contributions? and Issue no.3: Whether the claim of the workman is not maintainable?
49.Both the issues are being taken up together for the sake of convenience. While the onus to prove issue no.2 was on the management no. 2, the onus to prove the issue no.3 was on the management no.3 as they had asserted the same in their respective pleadings.
50.However, no evidence has been led by either the management no.2 or 3 to discharge the respective onus cast upon them as for reasons best known to them, the management no.2 and 3 stopped appearing since 2019. No evidence has been led by the management no.2 and 3 nor they examined any witness to prove their respective assertions i.e. as to the claimant/workman having left the job as per his choice after taking full and final amount and also withdrawing his EPF contributions, and as to the claim of the claimant/workman not being maintainable.
51.In the absence of any evidence having been so led and there being no admission by the claimant/workman in his rejoinders, it is held that the management no.2 and 3 have failed to discharge their respective onus, and issue no 2 is LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
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decided against the management no.2 and in favour of the claimant/workman while the issue no. 3 is decided against the management no.3 and in favour of the claimant/workman.
Issue no.4: As per terms of reference
52.As already noted, the reference as received is in respect of determining whether the services of the claimant/ workman 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.
53.That being so, it was for the claimant/ workman to prove the factum of his termination by the managements. In respect thereof, WW1 claimant/workman has inter-alia testified in Ex. WW1/A that he had been appointed with the management no.1 on 01.05.2002, then transferred to the management no.2 on 01.02.2003, and then transferred to the management no.3 on 15.07.2011, where his last drawn salary was ₹7,600/-. He has further testified that during the pendency of a Writ Petition no. 2236/2014, the managements had terminated his services out of vengeance on 01.08.2014, without any written reason and without any overtime payment.
54.It is pertinent to note here that except self serving averments in Ex. WW1/A and Ex. WW1/1, no evidence has been led by the claimant/workman to prove the factum LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
Page No. 26 of 28POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:35:26 +0530 of his termination on 01.08.2014 and the testimony of WW1 claimant/workman is also ambiguous as to which of the managements had terminated his services on 01.08.2014.
55.For reasons best known to the claimant/workman, he took no steps to seek production of any records from the management no.1, 2 or 3 to show that he was attending the work with the managements till 01.08.2014 nor he has stated on oath as to which of the managements had terminated his services.
56.It needs to be borne in mind that it was for the claimant/ workman to plead and prove the factum of termination by management no.1, 2 or 3 and not for the managements to disprove or for the courts to presume.
57.Thus, the only evidence on record qua the termination of the services of the claimant/workman is the mere self serving testimony of the claimant/ workman as to his services having been terminated on 01.08.2014, which does not constitute sufficient evidence, even on a scale of preponderance of probabilities, to prove the factum of termination of the services by the managements when read with, in conjunction with the fact that the claimant/ workman has not even specifically stated as to which of the managements had terminated his services and qua which of the managements he seeks reinstatement, and without there being any corroborative evidence at least in LIR No. 7922/2016 Sunny Chauhan vs M/s Delhi Tourism and Transportation Development Corporation & Ors.
Page No. 27 of 28POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:35:32 +0530 respect of the last working day of the claimant/ workman.
58.In the circumstances, with the factum of termination of services of the claimant/workman by the management remaining unproved, the question of the same being illegal and/or unjustifiable does not arise. This issue is accordingly decided against the claimant/workman and in favour of the managements.
Relief
59.In view of the above discussion and findings on issue no. 1 to 4, it is held that the claimant/ workman has failed to prove that his services have been terminated illegally and/or unjustifiably by the management. Hence, he is not entitled to get any relief. Reference is answered accordingly.
60.Copy of Award be uploaded on the website of RADC and another copy be sent to the concerned department through proper channels as per rules.
61.File be consigned to record room after necessary compliance. Digitally signed by POOJA Announced in the Open Court POOJA AGGARWAL AGGARWAL Date:
today on 07th June 2024 2024.06.07 04:35:40 +0530 (Pooja Aggarwal) Presiding Officer Labour Court-01, Rouse Avenue District Courts, New Delhi.LIR No. 7922/2016
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