Delhi District Court
Sh. Mahesh Chand vs M/S. Domestic Container Terminal ... on 25 September, 2017
IN THE COURT OF SURINDER KUMAR SHARMA
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA , DELHI.
LID No. 560/16
INDUSTRIAL DISPUTE BETWEEN :
Sh. Mahesh Chand
S/o Sh. Mahender Singh
C/o U.P.L.F. OppA92, F30/5
Okhla Industrial Area
Phase II, New Delhi - 20.
.........Workman
VERSUS
1.M/s. Domestic Container Terminal (CONCOR) Okhla Phase II, New Delhi - 20.
2. M/s. Sakura Dad's Security Services RZ444 E, Rajnagar Part II Palam Colony, New Delhi - 45.
.......Management
LID No.560/16 Page 1 of 20
Date of Institution : 24.09.2010
Date of Arguments : 08.09.2017
Date of Award : 25.09.2017
AWARD
1. The present Statement of Claim has been filed by the Workman directly before the Court under Industrial Disputes Act, 1947, against the Managements. Vide the present case, the Workman has sought his reinstatement with all consequential benefits.
2. Brief facts as stated in the statement of claim are that the Workman was appointed on the post of Guard w.e.f. 01.07.2008. As per the Workman, he was employed by Management No. 1 through Management No. 2. It is averred that Workman was paid salary through Management No. 2. LID No.560/16 Page 2 of 20 His ESIC and PF contributions were made by Management No. 1 and were deposited with the name of Management No.
2. It is stated that the Workman was working in Management No. 1 as per duty roster. It is alleged that he was not issued facilities like ESIC Card, PF Number, leave, bonus of the year 200809. When the Workman demanded statutory benefits, it refused employment to the Workman w.e.f. 01.11.2009 and new person in his place was kept on duty by the Management. Last drawn wages of the Workman was Rs. 7284/ per month. It is alleged that the Workman was not paid his retrenchment benefits. It is alleged that the services of the was terminated illegally.
3. The Workman had sent a demand notice to the Management. But the Management neither replied the same nor took the Workman back on duty. It is averred that the LID No.560/16 Page 3 of 20 Workman is unemployed since his illegal termination.
4. Notice of the Statement of Claim was issued to the Managements. Management no. 1 had filed the Written Statement to the Statement of Claim, wherein, the averments of the claim have been denied by the Management no. 1. The Management no. 1 has taken the preliminary objection that there exists no relationship of employer and employee between the Workman and Management No. 1. . It is averred that on the basis of the contract dated 18.08.2008 entered into between Management no. 1 and Management no. 2, Management No. 2 was providing its services on contractual basis to Management No. 1. As per the said contract, Management No. 2 was to make all the payments to the personnels deployed by it with Management No. 1. It is averred that its contract with Management No. 2 was LID No.560/16 Page 4 of 20 terminated vide communication dated 16.03.2010. Management no. 1 has prayed for dismissal of the claim of the Workman.
5. Rejoinder to the written statement of the Management no. 1 has been filed on behalf of the Workman, wherein, he has reiterated his claim as mentioned in his Statement of Claim and denied the averments as made by the Management no. 1 in its Written Statement.
6. No Written Statement has been filed on behalf of Management no. 2 and it was proceeded exparte vide order dated 17.07.2012 by Ld. Predecessor Court.
7. Thereafter, on the basis of the pleadings of the parties, the following issues have been framed vide order dated LID No.560/16 Page 5 of 20 23.07.2014:
1. Whether there exist any relationship of employee and employer between the claimant and the management no. 1? OPW
2. If issue no. 1 is proved in favour of the workman, whether the services of the workman were illegally or unjustifiably terminated by the management no. 1? OPW.
3. Relief.
8. The Workman in support of his case has examined himself as WW1. He has filed his evidence vide affidavit Ex. WW1/A in which he has reiterated the facts as stated in his Statement of Claim. In support of his case, he has also relied upon documents Mark A to Mark P. (The said documents are filed in the connected case titled as "Subhash Vs. Domestic Container Terminal (CONCOR) & Othr.".
9. On behalf of the Management it examined two LID No.560/16 Page 6 of 20 witnesses.
10. Sh. Vivekanand Dwivedi was examined as MW1. He filed his evidence vide affidavit Ex. MW1/A. He has also relied upon documents Mark 1 to Mark 6.
11. Sh. T.R. Venkateshwaran was examined as MW2. He has filed his affidavit Ex. MW2/A in evidence. He has also relied upon document Mark 1 and Mark 2.
12. I have heard Ld. Authorized Representatives of the parties and have perused the file.
My findings on the issues are as under: ISSUE NO. 1 "Whether there exist any relationship of employee and employer between the claimant LID No.560/16 Page 7 of 20 and the management no. 1? OPW".
13. The onus to prove this Issue has been casted upon the Workman.
14. The Workman in his affidavit Ex. WW1/A filed in evidence has stated that the was appointed through Management No. 2 to work in the premises of Management No. 1 on the post of Guard w.e.f. 01.07.2008. He has further stated that he used to work as per the duty roaster prepared by principal employer i.e. Management No. 1. The contribution towards ESIC and PF were made by Management no. 1 and the same were deposited by Management no. 2.
15. It was submitted by the Ld. AR of the Workman that LID No.560/16 Page 8 of 20 the Workman was appointed by Management no. 1 through Management no. 2. It was submitted that the Workman was performing his duty with Management No. 1. The salary was paid by Management No. 1 through Management No. 2. It was contended that the deductions on account of PF and ESIC were made by Management No. 1 from the salary of the Workman, but the same were deposited with the concerned authorities by Management No. 2. It was submitted that from the documents which have been relied upon by the Workman, it is proved that the Workman was the employee of Management No. 1.
16. On the other hand, it was submitted by the AR of Management No. 1 that the Workman was not an employee of Management No. 1. It was contended that there is nothing on record to show that the Workman was employee of LID No.560/16 Page 9 of 20 Management No. 1.
17. Apart from his affidavit, the Workman has relied upon the following documents:
a) Mark A. This is copy of the agreement executed between the Management No. 1 and Management No. 2. The perusal of this document shows that this was an agreement whereby, Management No. 2 was required to provide certain services to the Management no. 1. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
b) Mark B. This is copy of the letter whereby, the agreement Mark A was extended further for a period of one year. This document does not prove in any manner LID No.560/16 Page 10 of 20 the relationship of employer and employee between the Workman and Management no. 1.
c) Mark C. This is copy of the letter dated 30.09.2009 written by Management no. 1 to Management No. 2 regarding some clarification. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
d) Mark D. This is copy of the letter written by Management NO. 1 to Management No. 2 regarding complaint in respect of the staff of Management No. 2. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
e) Mark E. This is copy of the letter dated 04.12.2009 written by Management No. 1 to Management No. 2 regarding submission of Wages list etc. This document LID No.560/16 Page 11 of 20 does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
f) Mark F. This is copy of the letter dated 08.01.2010 written by Management No. 1 to Management No. 2 in respect of proof of disbursement of enhanced salary. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
g) Mark G. This is copy of the letter 03.03.2010 written by Management No. 1 to Management No. 2 regarding submission of Muster Roll etc. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
h) Mark H. This is copy of the letter 03.03.2010 written by Management No. 1 to Management No. 2 regarding LID No.560/16 Page 12 of 20 submission of Muster Roll etc. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
i) Mark I. This is copy of the letter 27.11.2009 written by Management No. 1 to Management No. 2 regarding clarifications in respect of pending bills. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
j) Mark C (This document has been inadvertently marked as Mark C, whereas the other document Mark C is different which has been discussed above). This is copy of the letter 04.09.2009 written by Management No. 1 to Management No. 2 regarding details of security personnels. This document does not prove in any manner the relationship of employer and employee between the LID No.560/16 Page 13 of 20 Workman and Management no. 1.
k) Mark J. This is copy of the letter 08.03.2010 written by Govt. of India, Ministry of Labour and Employment to Management No. 2 regarding complaint of some Labour Union regarding nonpayment of wages. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
l) Mark K. This is copy of the letter 16.03.2010 written by Management No. 1 to Management No. 2 regarding termination of security & Allied service contract for DCT / Okhla. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
m) Mark L. This is copy of the letter 26.03.2010 written by Management No. 1 to Management No. 2 regarding LID No.560/16 Page 14 of 20 submission of Muster Roll etc. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
n) Mark M. This is copy of the letter 31.03.2010 written by Management No. 1 to Management No. 2 regarding submission of Muster Roll etc. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no.
1.
o) Mark N. This is copy of the letter 05.05.2010 written by Management No. 1 to Management No. 2 regarding submission of proof of disbursement of enhanced payment / arrears. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
p) Mark O. This is copy of the contribution made by LID No.560/16 Page 15 of 20 Management No. 2 towards EPF. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
q) Mark P. This is copy of the Return dated 01.10.2009 of contributions made by Management No. 2 in respect of ESIC. This document does not prove in any manner the relationship of employer and employee between the Workman and Management no. 1.
18. As discussed above, all the documents relied upon by the Workman do not in any manner prove the relationship of employer and employee between the Workman and Management No. 1. Moreover, all the documents relied upon by the Workman have no evidentiary value as the same have not been proved in accordance with law. The Workman has filed his affidavit which is a self serving statement. The LID No.560/16 Page 16 of 20 Workman has not filed any such document like appointment letter, wage register, I Card etc. to prove that he was an employee of Management No. 1. Further, the perusal of the crossexamination of the Workman shows that in his cross examination, he has admitted that he was not employed by or in management no. 1.
19. Though the Workman has stated in his statement of claim that he has given a notice to the Management before filing the claim, but no such demand notice has been proved on record. In the absence of any evidence on behalf of the Workman. Therefore, it is clear that before filing the claim in the Court, the Workman did not send any demand notice to the Management after his alleged termination. Therefore, the claim of the Workman is not maintainable. Reliance in this regard can be placed upon the Judgment of Hon'ble Delhi High Court LID No.560/16 Page 17 of 20 reported as AIR 1970 Delhi 60, wherein, it has held as follows: "(12) We are of the view that the decision of the Supreme Court in S.R. Corporation v. Industrial Tribunal, Gujarat, referred to above, has finally established the proposition that a demand by the workmen must be raised first on the Management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is no sufficient to constitute an industrial dispute."
20. In view of the above discussion, it is held that the Workman has failed to prove that he was an employee of Management no. 1. The issue is decided accordingly against the Workman and in favour of the Management no. 1. LID No.560/16 Page 18 of 20 ISSUE No. 2
"If issue no. 1 is proved in favour of the workman, whether his services were illegally and /or unjustifiably terminated by the management no. 1? OPW."
21. In Issue No. 1 above it has been held that there did not exist employer and employee relationship between the Workman and Management No. 1, therefore, the question of terminating the services of the Workman illegally and unjustifiably by the Management No. 1 does not arise. Thus, this Issue is decided accordingly against the Workman and in favour of the Management No. 1.
ISSUE NO. 3 : RELIEF
22. In view of the findings on the Issues above, the LID No.560/16 Page 19 of 20 Workman is not entitled to any relief. The claim is dismissed accordingly.
23. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the Open Court today i.e. on 25.09.2017 (SURINDER KUMAR SHARMA) PRESIDING OFFICER LABOUR COURT KARKARDOOMA COURTS (EAST) DELHI.
LID No.560/16 Page 20 of 20