Delhi District Court
Between The vs The on 4 January, 2017
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IN THE COURT OF MS. RENU BHATNAGAR, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0775882007
ID No. 323/14
LID No. 170/16
Date of institution 03.12.2007
Date of Award 04.01.2017
BETWEEN THE WORKMAN
UMA SHANKAR PARSAD S/O SH. B PARSAD
GENERAL MAZDOOR TRADE UNION (REGD.)
IN FRONT OF LABOUR OFFICE, GIRI NAGAR,
KALKAJI, NEW DELHI-110019.
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 01.06.2005 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 'final checker' with the
the management on the last drawn salary of Rs.3500/ per month; that the management was not
ID NO. 323/14, LID NO. 170/16, UMA SHANKAR PRASAD VS J.J. INTERNATIONAL 1
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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 29.10.2007 without any notice, charge sheet or show cause notice and his
earned wages w.e.f 01.10.2007 to 29.10.2007 were also withheld by the management; that
thereafter the workman filed a complaint against his illegal termination in the Labour
Department but despite asking the Labour Inspector, management refused to keep him on duty;
that thereafter workman had sent a demand notice on 06.11.2007 to management through
Regd./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 17.12.2004 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 never received any demand notice. Hence it is prayed that claim of the workman
be dismissed.
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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, Ex.WW1/4
complaint dt.29.10.2007 made to ALC, Ex.WW 1/5 report of Labour Inspector. After
examining himself workman has closed his evidence. Thereafter case was fixed for
management evidence.
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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 report of Labour inspector. 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 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 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
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drawn against the management.
10. Ld. AR for the workman has cited as "Suresh 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
management 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. I/t 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 wages/casual employees who used to 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.
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:
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ISSUE NO.1 & 2.
13. As both issues are interconnected, they are decided together. The onus to
prove these issue 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.
15. 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.
16. 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
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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 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 wages 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.
17. Workman 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.
Accordingly none of the document produced by the workman can prove his employment with
the management. The management has produced Muster Roll and wages register for the year
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2007 but the name of the workman is not found mentioned therein. AR for workman has
greatly relied upon Ex.MW1/5 to say 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 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 has no opportunity with the workman to prove this document in legal manner. The
document Ex.MW1/W5 has no concern with the workman to prove the employment of the
workman with the management.
18. 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, adverse inference should
be drawn. Ld. AR for workman cited upon judgment reported as "Suresh International Vs
NCT of Delhi & Ors. 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
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correct that Mr. S.D Kaushik, 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)".
It is wrong to suggest that the management had not made the
payment of salary of Rs.3516/ of workman."
He further deposed that :
"The amount of Rs. 8,03,950/ reflected in my balance sheet is
in respect of these employees."
19. 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. 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 this admission of MW 1, employment of workman is proved. As per 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 argued that adverse inference should be
drawn against management. Ld. AR for workman has cited the case of "M/S SURESTH
INTERNATIONAL VS NCT OF DELHI & ANR" wherein it is held:
Thus we have delved on the merits of the case and find that the
appellant/management has no case in its favour. Undoubtedly
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the initial onus was on Surender Kumar to prove employer
employee 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 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.
20. It is also held 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 :
"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
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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. Nonproduction 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 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 ID NO. 323/14, LID NO. 170/16, UMA SHANKAR PRASAD VS J.J. INTERNATIONAL 11 12 immediately preceding the date of termination of their service".
21. 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 as well apart from permanent 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.
22. 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.
23. 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 ID NO. 323/14, LID NO. 170/16, UMA SHANKAR PRASAD VS J.J. INTERNATIONAL 12 13 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 29.10.2007 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. 75,000/ (Rupees Seventy Five Thousand Only) to 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.
24. 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 NO. 323/14, LID NO. 170/16, UMA SHANKAR PRASAD VS J.J. INTERNATIONAL 13