Delhi District Court
Whether There Exists No Relationship Of ... vs "To Prove A Contract Of on 2 June, 2007
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IN THE COURT OF SH. S.K. SHARMA
PRESIDING OFFICER LABOUR COURT-X :
KARKARDOOMA, DELHI.
Ref. No. : F.24(1946)/93-Lab.
Dated : 26.6.1993
I.D. No. : 212/95
Between
The Management of
M/s Kharkia Rolling Mills,
A-29, Wazirpur Industrial Area,
Delhi-52.
&
Its workmen S/Sh.
1. Shiv Mangal,
2. Ram Hari,
3. Mithai Lal,
4. Shankar,
5. Banarsi,
6. Subhash,
7. Paras,
8. Sharvan,
9. Jai Hind,
10.Sudershan,
11.Sambhu,
12.Suresh,
13.Ram Narain
14.Indrashan,
15.Mahabal
AWARD
In the present case, the above named
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workmen raised an industrial dispute regarding the
termination of their services by the management of M/s
Kharkia Rolling Mills. The appropriate Govt. on being
satisfied regarding the existence of industrial dispute
between the parties, made a reference for adjudication.
The said reference is as under:
"Whether the services of S/Sh.
Shiv Mangal, Ram Hari, Mithai
Lal, Shankar, Banarsi, Subhash,
Paras, Sharvan, Jai Hind,
Sudershan, Sambhu,
Suresh,Ram Narain, Indrashan
& Mahabal have been terminated
illegally and/ or unjustifiably by
the management, and if so, to
what relief are he/they entitled
and what directions are
necessary in this respect ?"
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Thereafter, the workmen filed statement of
claim. It is stated in the statement of claim that the
workman Shiv Mangal was working with the
management since 1.11.1989 as ' Machine-man' and
his last drawn salary was Rs. 1,150/- per month. The
workman Ram Hari was working with the
management since 1.12.1989 as ' Machine-man' and
his last drawn salary was Rs. 1,000/- per month. The
workman Mithai Lal was working with the
management since 22.11.1989 as ' Machine-man' and
his month salary was Rs. 1,050/-. The workman
Shankar was working with the management since
12.11.1989 as ' Machine-man' and his last drawn
salary was Rs. 1,050/- per month. The workman
Banarsi was working with the management since
20.11.1989 as ' Machine-man' and his last drawn
salary was Rs. 1,150/- per month. The workman
Subhash was working with the management since
3.11.1989 as ' Machine-man' and his last drawn
salary was Rs. 1,100/- per month. The workman Paras
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was working with the management since 8.12.1989 as
' Machine-man' and his last drawn salary was Rs.
1,200/- per month. The workman Sharvan was
working with the management since 12.11.1989 as '
Machine-man' and his last drawn salary was Rs.
1,150/- per month. The workman Jai Hind was
working with the management since 18.11.1989 as '
Machine-man' and his last drawn salary was Rs.
1,100/- per month. The workman Sudershan was
working with the management since 26.11.1989 as '
Machine-man' and his last drawn salary was Rs.
1,175/- per month. The workman Shambhu was
working with the management since 22.12.1989 as '
Machine-man' and his last drawn salary was Rs.
1,200/- per month. The workman Suresh was working
with the management since 18.11.1989 as ' Machine-
man' and his last drawn salary was Rs. 1,200/- per
month. The workman Ram Narain was working with
the management since 5.11.1989 as ' Machine-man'
and his last drawn salary was Rs. 1,600/- per month.
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The workman Indrashan was working with the
management since 4.12.1989 as ' Machine-man' and
his last drawn salary was Rs. 1,100/- per month. The
workman Mahabal was working with the
management since 10.12.1989 as ' Machine-man' and
his last drawn salary was Rs. 1,200/- per month. The
workman Shiv Nath was working with the
management since 19.11.1989 as ' Machine-man' and
his last drawn salary was Rs. 1,100/- per month. It is
stated in the statement of claim by the workmen that
they were not provided their legal facilities such as
minimum salary, Earned Leave, Bonus etc. by the
management. It is stated by the workmen in their
statement of claim that on demanding the same, the
management got annoyed and on 10.12.1992, when
they went to join their duties, the management did
not allow them to join their duties. It is stated in the
statement of claim by the workmen that the services
of workmen were terminated by the management
illegally and wrongfully w.e.f. 10.12.1992 without any
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notice and charge- sheet. It is stated by the workmen
in their statement of claim that they sent a demand
notice to the management on 8.2.1993 but the
management neither sent reply of the same nor the
workmen were reinstated. It is stated in the
statement of claim by the workmen that they made a
complaint to the Labour Inspector but the
management did not appear despite repeated calls.
Notice was issued to the management. The
management did not appear despite service and was
proceeded against ex-parte.
In the ex-parte evidence, the workman namely
Ram Narain, Shiv Mangal, Subhash, Paras, Jai Hind,
Sudershan and Shambu filed their affidavits in support
of their case.
Thereafter, on 19.2.1998, my Ld. Predecessor
Shri A.S. Yadav, passed an award in this case.
Thereafter the management filed an
application for settling ex-parte award and file was
taken up on the application of the management and
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notice of the application was issued to the workmen.
Vide order dated 18.7.2003, my Ld. Predecessor, set
aside the ex-parte award dated 19.2.1998.
Thereafter, management filed written
statement wherein, the management has denied the
version of the workmen as made in their statement of
claim. It is stated in the W.S. that the claim of the
workmen is not maintainable as there is no relationship
of employer and employee between the parties. It is
stated in the WS that there has never been a firm in the
name and style of M/s Kharkia Rolling mills at A-29,
Wazirpur, Industrial Area, New Delhi.
The rejoinder was filed on behalf of the
workmen wherein they denied the averments made by
the management in its W.S. and reiterated their version
as made in their statement of claim.
On 25.8.2003, from the pleadings of the parties,
my Ld. Predecessor framed the following issues:
1. Whether there exists no relationship of employee
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and employer between the parties ?
2. As per terms of reference.
3. Relief.
In order to prove their case, the workman Ram
Narain has examined himself as WW1, who filed his
affidavit as Ex. WW1/1. wherein he supported his case
as mentioned in the statement of claim. The workman
Shiv Mangal has examined as WW2 and filed his
affidavit as Ex. WW2/A. The workman Mithai Lal
examined himself as WW4 and filed his affidavit as
Ex.WW4/A. In fact, he should have been examined as
WW3 but due to inadvertence he was examined as WW4.
The workman Suresh Chand examined himself as WW4
and filed his affidavit as Ex.WW4/A. The other workmen
have filed their affidavits but they did not turn up for
their statements. Therefor, their affidavits cannot be
considered.
To prove its case, the management has not led
any evidence.
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I have heard Ld. AR for the management. I
have also perused the file.
My findings on the issues are as under :
Issue No. 1
The case of the workmen is that they were
working with the management. On the other hand, the
case of the management is that it has no relationship of
employer and employee with the claimant/workman.
The Hon'ble High Court of Delhi in a case
which is reported as "2006 LLR 498" has held as under:
"RELATIONSHIP OF
EMPLOYER AND EMPLOYEE -
Burden of proof upon the
workman. In view of the settled
principle- A party who
substantially asserts the
affirmative of the issue and not
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upon the party who denies the
same ."
In view of the above referred judgement, the
onus to prove this issue is upon the workmen.
The Hon'ble Madhya Pradesh High Court - (Indore
Bench) in a judgment reported as "2001 (88) FLR 230"
has held as under :
"To prove a contract of
employment, there has to be a
direct evidence to show some
nexus between the claimant and
the respondent. This can be of any
kind such appointment letter, monthly payment slip, deduction of PF, payment of any dues which would show that he was in the employment, any correspondence 11 wherein the respondent has admitted that claimant was in his employment. In substance, the courts are in favour of documentary evidence to record a definite finding on such type of issue. They are the best piece of evidence for coming to a conclusion one way or other."
The Hon'ble Delhi High Court in a judgment reported as "130 (2006) DLT 160" has held as under :
"Labour Law - Engagement and appointment in service can be established directly by existence and production of appointment letter, written agreement or by 12 circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave record, deposit of PF contribution, ESI, etc."
In this case, the workman Sh. Ram Narain has filed ten documents. Ex. WW1/A is the Temporary Identification Certificate of ESIC. The perusal of the same shows that name of the beneficiary is Shri Surender Singh and employer is J.S. Enterprises. In the present case, the name of workman is Ram Narain and employer is Kharikia Rolling Mills. Hence this document is of no use for the workman. The document Ex. WW1/B is a certificate issued by Dr. S.L. Gaur. This certificate is issued in the name of Surinder Singh. The perusal of the said document does not show that the workman Ram Narain was working with the management. The documents, Ex. WW1/H and WW1/G 13 are the receipt/ acknowledgments, Ex. WW1/F is an envelope. The said documents also do not show that the workman Ram Naraian was employed with the management. The workman Shiv Mangal has examined himself as WW2. He has also relied upon the documents filed by workman WW1 Ram Narain. But none of the said documents shows that workman Shiv Mangal was working with the management. Moreover, WW2 Sh. Shiv Mangal has stated in his cross examination that he has no document to show that he had been working with M/s Kharkia Rolling Mills. The workman Mithai Lal, who was numbered as WW4 due to inadvertence instead of WW3. He has also relied upon the documents already filed by the workman Ram Narain. Similarly, none of the said documents, show that the workman Mithai Lal was working with the management. It is important to note that he has also deposed in his cross examination that he has no documents to show that he had been working with M/s Kharkia Rolling Mills at any point of time. The workman Suresh Prasad filed documents 14 Ex.WW4/1 to Ex. WW4/3. The document Ex. WW4/1 is a demand letter sent by the workers namely Banarsi and others addressed to Shri Sita Ram Prop. Kharikia Rolling Mills and Shri Jagish,Subhash Karikia Prop. J.S. Enterprises & Kharikia Rolling Mills J.S. Enterprises. Ex. WW4/2 is the UPC. Ex. WW4/3 is the copy of claim filed before the Conciliation Officer. The perusal of the said documents shows that none of the documents indicate that the workman Suresh Prasad was working with the management. Moreover, WW4 Shri Suresh Prasad has admitted in his cross examination that he has no document to show that the firm M/s Kharkia Rolling Mills has ever existed at A-29 Wazirpur Industrial Area. He has also admitted in his cross examination that he has also not filed any document to show that he had ever worked at A-29 Wazirpur, Indl. Area, Delhi. He has also admitted in his cross examination that he has also not filed any document to show that Sh. Sita Ram had been the proprietor or the partner of M/s Kharkia Rolling Mills at any point of 15 time. Apart from the documents referred above, the workmen have not produced any other document to show that they were employed with the management and the said documents are not sufficient proof to show that they were employed with the management as mentioned in the judgments "2001 (88) FLR 230" ( Supra ) and "130 (2006) DLT 160" (Supra). Therefore, in the absence of any such document, I am of the view that the workmen viz. S/Sh. Ram Narain, Shiv Mangal, Mithai Lal and Suresh Chand have failed to prove that he was employed with the management.
As discussed above, the other workmen have filed their affidavits but they did not turn up for their statement. Therefore, their affidavits cannot be considered.
Accordingly, I am of the view that none of the workmen was employed with the management.
This issue is decided accordingly, in favour of the management and against the workmen. 16 Issue No. 2 :
As in issue No. 1 above it has been held that the workmen were not employed with the management, so, there is no question of their illegal termination by the management.
The issue is decided accordingly, against the workmen and in favour of the management. Issue No. 3. :
In view of the findings on the issues above, as the workmen have failed to prove their case, in my view, the workmen are not entitled to any relief.
Reference is answered accordingly and the Award is passed. The ahlmad is directed to send six copies of the Award to the appropriate government. The file be consigned to record room. Announced in open Court on 2nd June ' 2007.
(S.K. Sharma) Presiding Officer Labour Court-X Karkardooma Courts, Delhi.