Delhi District Court
Id. 322/14, Lid No. 171/16, Nand Kishore vs M/S J.J. International 1 on 4 January, 2017
IN THE COURT OF MS. RENU BHATNAGAR; PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0775922007
ID No. 322/14
LID NO. 171/16
Date of institution 03.12.2007
Date of Award 04.01.2017
BETWEEN THE WORKMEN
NAND KISHORE S/O LT. PARAM HANS
THROUGH: GENERAL MAZDOOR TRADE UNION (REGD.)
IN FRONT OF OLD LABOUR OFFICE, GIRI NAGAR
KALKAJI, NEW DELHI110019.
AND
THE MANAGEMENTS OF
M/S J.J. INTERNATIONAL
A4, DDA SHEDS, OKHLA INDUSTRIAL AREA PH1
NEW DELHI110020,
P.S. OKHLA PH1.
A W A R D
1. By this award I shall dispose off the claim of the workman as filed
by him directly before the court against the management as per notification of Delhi
Govt., under Industrial Disputes Act 1947.
2. Brief facts as stated by the workman in his claim are that he was appointed with
M/s Jaine Export on 10.11.2002 whereafter the management changed its name to J.J
International though the proprietor of the management are one and the same and the
address of the management also remained the same ; that workman was working as
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 1
'final checker' with the management on the last drawn salary of Rs.3700/ per month;
that the management was not providing legal facilities like appointment letter, weekly
and festival off, bonus, overtime etc., and used to take his signatures on blank papers
and vouchers; that on demanding the legal facilities time and again, the management got
annoyed and pressurized the workman to tender his resignation which was not adhered
to by the workman whereupon the management had terminated him on 08.11.2007
without any notice, charge sheet or show cause notice and his earned wages w.e.f
01.09.2007 to 08.11.2007 were also withheld by the management; that thereafter the
workman filed a complaint against his illegal termination in the Labour Department but
despite asking of the Labour Inspector, management refused to keep him on duty; that
thereafter workman had sent a demand notice on 16.11.2007 to management through
Regd.AD/UPC but no reply was sent by the management despite receiving the same ;
that workman is unemployed since the date of his termination hence he has claimed
reinstatement, with full back wages .
3. Notice of filing of the claim was sent to the management who appeared and
contested the case of workman. In the written statement filed by the management, it has
taken preliminary objection that claim is not maintainable as the workman was never
appointed by the management as its employee at any point of time and that the
management founded its concern w.e.f 26.5.2006 and prior to 26.5.2006 it was never in
existence ; that the management never changed its name at any point of time and the
workman never came to the management for any employment. On merits all the
averments are denied. It is denied that workman was appointed on 10.11.2002 with Jaini
Exports or that the management changed its name from Jaini Export to JJ International.
It is also denied that Jaini export and JJ International were same earlier. All other
averments are denied by the management. It is stated that Labour Inspector has not
come to the management for reinstatement of the workman. It is stated that management
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 2
never received any demand notice. Hence it is prayed that claim of the workman be
dismissed.
4. In rejoinder, all the averments of claim were reaffirmed and all the averments
of the written statement are denied.
5. On the pleadings of the parties following issues were framed vide order dt.
31.10.2008 by the then Presiding Officer Labour Court :
1. Whether there was any employee and employer
relationship between the claimant and the
management? OPW.
2. If so, whether the termination of service of claimant
was illegal and unjustified? OPW
3. Relief.
No other issue was arose or pressed and thereafter the case was fixed for workman's
evidence.
EVIDENCE OF WORKMAN
6. In support of his case, workman himself appeared as WW1 and tendered
his evidence by way of affidavit Ex.WW1/A. He relied upon the documents Ex.WW1/1
demand notice dt. 16.11.2007, Ex.WW1/2 postal receipt and Ex.WW1/3 receipt of UPC.
He also placed on record the documents mark A copy of complaint dt. 12.11.2007 and
mark B copy of report of Labour Inspector. After examining himself workman has
closed his evidence. Thereafter case was fixed for management evidence.
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 3
EVIDENCE OF MANAGEMENT
7. In support of its defence, management has examined Sh. Tushar Jain
as MW1 who has tendered his evidence by way of affidavit Ex.MW1/A.
8. Management has also examined MW.2 H.C Naresh Kumar No. 363
South East, P.S Okhla Delhi who had brought the original record of DD No.4A dt.
21.4.2010 Ex.MW2/A which pertains to the fire incident occurred in the management.
After examining MW2, management has closed its evidence. After that case was fixed
for arguments.
ARGUMENTS OF AR FOR WORKMAN
9. It is stated by AR for workman that management has denied the
relationship of the employer and employee with the management. To prove relationship,
workman has placed on record the gate passes as well as report of Labour inspector. It
is stated that gate passes are not refuted by the management. It is stated that
management has filed the Muster Roles and Wages Register. However, the amount as
reflected by the management in Ex.MW1/W4 has not matched with the salaries of the
employees employed with the management in the year 2007. As per the payment of
wages register there is large mismatch in the figure of wages. It is stated that wages as
shown in the profit and loss account Ex.MW1/W4 are around Eight Lacs but the salary
of the four employees working with the management cannot be more than One Lac Fifty
Thousand or Two Lacs. It is argued that when MW1 was asked in his cross
examination, he could not account for this mismatch which means that management has
not shown the name of many employees in the wages register and as such it should be
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 4
presumed that workman was an employee of the management as records which are filed
by the management are not genuine and as such adverse inference should be drawn
against the management.
10. Ld. AR for the workman has cited as "M/s Shresth International
Vs NCT of Delhi & Ors LPA No. 36/2011 decided by Hon'ble J. Pradeep Nandrajog
and Honble Ms J Mukta Gupta of Delhi High Court on 09.09.2015" Hence it is
prayed that claim of the workman be allowed.
ARGUMENTS OF MANAGEMENT
11. It is argued by Ld. AR for the management that workman was not an
employee of the management. Workman had not made any application for production
of records, however, MW1 has produced the record whatever was available as entire
record was damaged due to fire which broke in the premises of the management. It is
stated that workman states that he joined Jaini Exports which changed to J.J
International/present management but no evidence is produced. The gate passes
produced by the workman belonged to Elen Overseas and they do not belong to the
management. Challan is not produced in original and is marked and cannot be relied
upon. It is stated that so far as the mismatch of wages in profit and loss is concerned,
MW1 has given sufficient explanation in his deposition before the court. The wages as
shown in profit and loss account included the wages of permanent employees and of
daily wagers/casual employees who used to be employed either through contractor or
by showing the vacancies on the notice board and that only names of regular
employees are mentioned in the register of payment of wages hence it is prayed that
workman is not able to prove relationship and hence case be dismissed.
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 5
CONCLUSION
12. I have heard the submissions of Ld. A.Rs of workman and
management and have perused the record. My issue wise findings are as under:
ISSUE NO.1 & 2.
13. As both issues are interconnected, they are decided together. The
onus to prove these issues are upon the workman. To prove his employment with the
management workman has deposed in his evidence that he was appointed in Jaini
Exports by the management on 10.12.2002 and the Jaini Exports name was changed to
J.J International i.e present management in which workman started working. He has
stated that on demanding the legal facilities, management terminated him on 08.11.2007
after withholding the salary w.e.f 01.09.2007 to 08.11.2007.
14 In support of his case, workman relied upon demand notice, postal
receipts of the demand notice. All the three documents do not relate to the period of
employment and cannot prove the relationship of the workman with the management.
During the crossexamination workman has produced three more documents I.e mark
WW1/M1 which is photo copy of the challan dt. 06.11.2007. So far as this document is
concerned, this document is only marked and is not exhibited being the photo copy and
as such the marked document cannot be read in evidence. The workman did not try to
summon the original of this challan from the management so as to prove this document.
Ex.WW1/M2 are few gate passes in the name of workman. Perusal of all these gate
passes reveal that they bear the name of establishment Elen Overseas and it is admitted
by the workman during his crossexamination that these gate passes were not issued by
the management/J.J. International, hence these gate passes are also not relevant for
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 6
proving the relationship of the workman and management JJ International. Third
document is Ex.WW1/M3 which is alleged to be receipt of Money Order received by
the workman at the address of management. Perusal of these document reveal that this
receipt of Money order does not bear the name of the management and only the address
of the management is mentioned. Merely receiving the letter/money order at the
address of the management cannot make workman an employee of the management .
15. Apart from this document, the workman has not placed on record
any other document to discharge the onus of proving the relationship.
16. However, during crossexamination MW1 has filed certain
documents. Ex.MW 1/W1 is certificate of importer/exporter code (IEC) issued by the
Govt. of India to the management on 26.5.2006. This document is produced by MW1
to prove that management started its business in the year 2006. To rebut this document
workman had not called any record from any department nor could disprove the
authenticity of the same to show that management was in operation even prior to 2006.
The workman also could not prove the change of name of management from Jaini
Exports to J.J. International, hence working of workman prior to 2006 can not be
considered.
17. Other document Ex.MW1/2 is the extract of Muster Roll for the
period January 2007 to December 2007. In this Muster Roll, the name of only four
employees are shown to be working with the management. The name of the workman is
not there in this document. Ex.MW1/W3 is extract of register of payment of wages
from January 2007 to December 2007 wherein also names of those four employees with
their signatures are mentioned. This document also does not contain the name of the
workman. MW1/W4 is statement of profit and loss account of the management for the
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 7
year ending on 31.03.2008. With regard to this document, Ld. AR for workman has
stated that there is mismatch in the figure of wages as shown in this document and
wages of four workmen who are allegedly working with the management and whose
muster roll and wages register has been filed by the management. It is stated that this
mismatch of wages clearly shows that there were other employees also who were
working with the management including the present workman. In this regard the
testimony of MW1 is required to be noted. In respect of this document it is mentioned
by MW1 in his crossexamination that they used to write the name of a permanent staff
in the payment of wages register and rest of the employees of daily wages whose names
are not mentioned in the register. The daily wagers or casual employees used to be
employed either through contractor or by showing vacancies on the notice board and
used to be paid monthly by the management and their number used to be ranging from
3 to 16. MW1 has stated that he cannot produce the complete record of payment of
Rs.8,03,950/ as shown in the balance sheet Ex.MW1/W4 nor can produce the record
of wages or attendance of any employee for the period prior to 2010 or of 2008 as they
were burnt in the fire in the year 2010. To prove the said factum of occuring of fire in
management, it has examined H.C Naresh of P.S Okhla as MW2 who proved the DD
No.4A regarding fire incident occurred on 21..4.2010. The statement of MW1 with
regard to non production of document on account of breaking of fire is duly
corroborated by MW2 through DD entry.
18. It was never case of workman that he was earlier working with
Elen Overseas of whose gate passes are produced by workman. He has stated that he
was appointed in Jaini Exports which changed its name to J J International. To prove
this averment, workman has not led any evidence. The management has produced
Muster Roll and wages register for the year 2007 but the name of the workman is not
found mentioned therein. AR for workman has greatly relied upon Ex.MW1/5 to say
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 8
that MW1 has admitted that Vinod was its employee who has executed Ex.MW1/W5
and this document proves that workman was its employee as his signatures are there on
this document. To decide this argument of the AR for workman, it is necessary to look
to this document. This letter is executed by one Vinod Kumar and it is mentioned that
Mahesh Master shall submit pieces after finishing. This document is not issued to
workman but to one Mahesh Master. Moreover MW1 has not identified signature of
that Vinod Kumar on this document. This document Ex.MW1/W5 is showing signature
of Nand Kishore which are alleged to be signatures of workman. There are signatures
of other person as well on this document. Possibility cannot be ruled out that Mahesh
master along with these persons whose signatures are appearing on Ex.MW1/W5 had
completed the work assigned to him by management. Admittedly the letter is written on
the letter head of management by a person who was admittedly an employee of
management. Though MW1 could not identify his signature, but the original of this also
could not be summoned from management as all its records were destroyed in fire.
Hence there was no opportunity with the workman to prove this document in legal
manner.
19. Ld. A.R for workman has argued that during crossexamination
MW1 has admitted that workman was employee of management and in view of this,
workman is proved to be its employee and as no document is produced by management,
workman could not prove his 240 days of working and an adverse inference should be
drawn. Ld. AR for workman cited upon judgment reported as "M/s Shresth
International Vs NCT of Delhi & Ors.(Supra) It is pertinent to refer to that part of
testimony of MW1 wherein it is deposed by MW1 that :
"It is correct that I have not placed any document or
agreement with any contractor on record. I cannot say if
the workman was kept directly by the management or
through contractor. It is correct that Mr. S.D Kaushik,
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 9
Labour Inspector had visited the management for
inspection in the year 2007. It is correct that the
management had refused to keep the workman on duty
before the Labour Inspector. (vol. Management refused
as his work was not up to mark)".
He further deposed that :
"The amount of Rs. 8,03,950/ reflected in my balance
sheet is in respect of these employees."
20. It is clear from testimony of MW.1 that he has admitted the
workman to be its employee, though in WS, management has denied the relationship
altogether. From this admission of MW1, employment of workman is proved. Though
MW1 has stated that he is not aware whether workman was employed directly by
management or through contractor but no agreement with contractor is proved on
record. Management has admittedly not taken any registration for hiring contract Labour
through contractor under contract Labour Regulation and abolition Act. Hence it is hard
to believe that workman was employed through contractor. In view of the admission of
MW 1, employment of workman is proved. As per settled law, workman is also
required to prove that he had worked for more than 240 days with management. The
management has pleaded that all the records prior to 2010 were burnt during fire. The
records were essential for proving the 240 days of working of workman with
management but as the records are not produced, Ld. AR for workman has rightly
argued that adverse inference should be drawn against management.
21. In case reported as "Sports Authority of India Vs. Sports
Authority of India Kamgar Union & Ors MANU/DE/1245/2004" wherein the
Hon'ble Delhi High Court has held that :
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 10
"The Ld. Counsel appearing for the petitioner while placing
reliance upon the judgment of the Supreme Court in Range
Forest Officer Vs. S T Hadimani, 2002 (3) SCC 25 argued that
there was no onus and onus to prove this fact or otherwise
could not be placed upon the Management and it was for the
workman to establish such averment by cogent evidence. The
legal proposition contended does not require any detailed
discussion and in fact the Supreme Court in the case of State
of Gujarat & Ors. V. Pratamsing Narsinh Parmar, JT 2001 (3)
SC 326 had stated the same law. The facts of the present case
are entirely different. The workman in his claim petition has
specifically averred that they have completed 240 days. Not
only this, in the affidavit filed on behalf of the Management
before the Labour Court, it was clearly admitted that the
workman have been working with the Management from
December 1989 to October 1990. This affidavit to a large
extent supported the case of the workman as their services
with the respondents and they had completed 240 days at least
upon addition of Sundays and Holidays. In these circumstance, the workmen had certainly discharged their onus and it had shifted towards the Management if they wanted to establish anything to the contrary. The management even withheld the attendance register. Non production of material documents a party to the list would inevitably result in drawing of adverse inference against party. Production of best evidence is obligatory upon the parties de horse the specific onus on either of them. It is primarily for the reason that onus shifts on different stages upon different ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 11 stages upon different parties. It may be an evidence in examinationinchief by way of evidence, evidence by the opposite side to meet the primary evidence led by the other side and then the right to rebuttal in the facts and circumstances of the case is the claim of normal rule of evidence which in its general principle is applicable to the proceedings before the Labour Court. Of course, the rule of evidence, is not strictly applicable to the proceedings before the Labour Court. In these circumstances, I am of the view that the workman had established on record that they have worked for more than 240 days in the year immediately preceding the date of termination of their service".
22. It is held by Delhi High Court in "M/S SHRESTH INTERNATIONAL VS NCT OF DELHI & ANR"( Supra) : "Thus we have delved on the merits of the case and find that the appellant/management has no case in its favour. Undoubtedly the initial onus was on Surender Kumar to prove employeremployee relationship which he discharged by proving the gate passes Ex.WW1/1, Ex.WW1/2 and WW1/2A which have been admitted by the appellant/management. Surender Kumar categorically stated that no bonus, leave, PF or ESI facilities were granted and further no legal records were maintained by the management. Thus it was not within his domain to have proved the employeremployee relationship by way of an appointment letter or other legal documents. Having discharged the initial onus burden shifted to the appellant/management to disprove the fact that Surender Kumar was not employed by the management in which it failed. Indisputably management ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 12 was carrying on the work at the addresses mentioned above and had thus employed workers for the same.
Thus having not produced the attendance registers and other relevant documents which could have disproved that Surender Kumar was not working with the management, the management failed to discharge its onus and thus the award was rightly passed in favour of the workman and against the management.
23. In the present case also, from the admission of MW1, coupled with Ex.MW1/W5 duly corroborated by Ex.MW1/W4, the burden of workman to prove relationship is discharged. Now having discharged the initial onus, burden shifted to management to disprove the fact that workman was not employed with the management. For discharging the same, the management has provided the muster roll and wages register of only four permanent worker employed with it in the year 2007 stating that the record of other years prior to 2010 was destroyed in fire. It is also admitted by MW1 that the wages of Rs.8,03,950/ as shown in profit and loss account/ balance sheet Ex.MW1/W4 is in respect of the other employees apart from permanent employees whose muster roll/wages register is produced. If we calculate the total wages of four employees of the year 2007, it cannot be more than 2,50,000/(Rupees Two Lacs Fifty Thousand only) and it means that around six lacs of rupees shown towards wages in balance sheet of management is in respect of daily wagers/contractor employees. As the management has failed to produce the wages/attendance/leave/bonus/ESI/PF record etc., of its employees apart from four alleged regular employees of 2007, an adverse inference is bound to be taken against the management. By not providing any of the record of other employees whose wages are mentioned in balance sheet of management, the management has failed to discharge the onus and adverse inference is bound to be taken against the management. As no contract of any contractor is placed on record, it is already observed that it is not believable that employees were kept through contractor.
ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 13 Even if workman was kept as daily wager, he is duly covered under I.D Act and cannot be terminated without following the procedure as prescribed under Law/Sec. 25 F of I.D Act.
24. Accordingly in view of above discussion, it is proved that workman was employed with management, worked for more than 240 days and was terminated illegally. Accordingly both these issues are decided in favour of the workman and against the management.
ISSUE NO.3.
25. The workman has stated that he is unemployed since the date of his termination. This statement of workman is not rebutted by management by leading evidence. Now question is whether workman should be reinstated or should be granted compensation. It is held by the Hon'ble Supreme Court of India in the case titled Employers, Management of central P & D Inst. Ltd. Vs Union of India & Another, AIR 2005 Supreme Court 633 that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the Court. Similar views are expressed by Hon'ble Delhi High Court in case titled as Indian Hydraulic Industries Pvt. Ltd. Vs Kishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it is held by the Court that even if the termination of a person is held illegal, Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to a workman instead of reinstatement and back wages. The workman was terminated on 08.11.2007 and by this time he must have joined some other management. In such circumstances, I deem it appropriate to grant compensation to the workman instead of reinstatement. Accordingly, I grant a compensation of Rs. 90,000/ (Rupees Ninety Thousand Only) to ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 14 the workman instead of reinstatement and back wages. The amount of compensation shall be paid to the workman within one month from the date the award becomes enforceable failing which the amount shall carry an interest @ 9% p.a. from the date it becomes due till the time it is realized.
25. A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court on this 04.01.2017. (RENU BHATNAGAR) PRESIDING OFFICER:LABOUR COURTIX/ EAST DISTT./KKD COURTS:DELHI ID. 322/14, LID NO. 171/16, NAND KISHORE VS M/S J.J. INTERNATIONAL 15