Delhi District Court
Phool Kumar & 182 Ors vs . on 12 September, 2011
IN THE COURT OF SHRI T. S. KASHYAP
PRESIDING OFFICER : LABOUR COURTXIX (EAST)
KARKARDOOMA COURTS : DELHI
LIR No. 841/06/02(Old No. I.D. 353/02)
Unique Case I.D. No. 02402C0011872002
PHOOL KUMAR & 182 Ors.
C/o Delhi Hosiery Workers Union
1800/9, Govindpuri, Extn.
Main Road, Kalkaji, New Delhi19. ...................................Workmen
Vs.
M/S. B.N. ENTERPRISES
E30, Patparganj, Main Market,
Delhi91. ..............................Management
Date of Institution of case : 29.06.2002
Date of reserving the award : 16.08.2011
Date of pronouncement : 12.09.2011
Ref No. F.24 (811)2002/Lab./947781, dated 05.06.2002
A W A R D (ORAL)
Having satisfied regarding existence of an industrial dispute between
the parties, Secretary (Labour), Government of NCT of Delhi in exercise of
LIR No. 841/06/02 (Old No. I.D. 353/02) 1 of 56 pages
powers conferred by section 10(1)(c) and 12 (5) of the Industrial Disputes
Act, 1947 (hereinafter referred as 'Act'), r/w Govt. of India, Ministry of
Labour Notification No. S11011/2/75/DK (IA), dated 14.04.1975, referred
the present dispute to Labour Court No. IX for adjudication with the
following terms of reference:
"Whether the services of Sh. Phool Kumar & 182
others as shown in Annexure'A' have been
terminated illegally and or unjustifiably by the
management, and if so, to what sum of money as
monetary relief alongwith consequential benefits in
terms of existing laws/Government Notifications and
to what other relief is he (sic) entitled and what
directions are necessary in this respect?"
2. On service of notice of reference, a joint statement of claim was filed
giving details of name, father's name, designation, period of service and
wages of 183 workmen as per Annexure 'A' as under :
S. Name Father's Designa Period Wages
No. Name tion of
Service
1. Phool Kumar Vishal Singh Tailor 9 years 3500/
2. Shyam Kumar Sohan Lal Tailor 7 years 3400/
3. Mombin Md. Hosla Tailor 9 years 3500/
4. Radheyshyam Prem Chand Tailor 7 years 3300/
5. Harkesh Rajpal Singh Tailor 8 years 3500/
LIR No. 841/06/02 (Old No. I.D. 353/02) 2 of 56 pages
6. Suresh Ramchand Tailor 7 years 3500/
7. Tulsi Kunji Lal Tailor 8 years 3500/
8. Jamil Md. Din Tailor 6 years 3200/
9. Guddu Askar Ahmad Tailor 6 years 3100/
10. Wasim Md. Kalim Tailor 8 years 3300/
11. Raja Vishal Singh Tailor 7 years 3400/
12. Sarvesh Ved Prakash Tailor 5 years 3000/
13. Mahesh Chhote Lal Yadav Tailor 6 years 3000/
14. Raju Shiv Prasad Yadav Tailor 6 years 3100/
15. Alim Md. Fakruddin Tailor 7 years 3200/
16. Mahboob Md. Abdul Rehman Tailor 6 years 3300/
17. Yakoob Md. Abdul Rehman Tailor 7 years 3100/
18. Khalil Garibulla Tailor 9 years 3400/
19. Sunil Mohan Lal Tailor 9 years 3500/
20. Surendra Mohan Lal Tailor 5 years 3000/
21. Kiran Pal Balwant Singh Tailor 7 years 3500/
22. Ibrahim Rashid Tailor 10 years 3500/
23. Islam Ibrahim Tailor 7 years 3200/
24. Tejpal Prasadi Lal Tailor 6 years 3300/
25. Dinesh Tejpal Tailor 5 years 3000/
26. Rakesh Sohanlal Tailor 6 years 3200/
27. Md. Asfaque Md. Sohail Tailor 5 years 3000/
LIR No. 841/06/02 (Old No. I.D. 353/02) 3 of 56 pages
28. Brajesh Babulal Yadav Tailor 6 years 3200/
29. Mukhtar Md. Abdulla Tailor 6 years 3100/
30. Hari Ram Shah Babu Ram Shah Paster 5 years 3100/
31. Israr Md. Nasir Tailor 8 years 3400/
32. Vinod Kumar Mukhtar Singh Tailor 9 years 3500/
33. Lal Chand Srichand Tailor 8 years 3400/
34. Suresh Kumar Late Hari Singh Tailor 8 years 3400/
35. Nafis Master Shamim Tailor 7 years 3400/
36. Kismat Ali Ikramul Haque Tailor 9 years 3450/
37. Naresh Tikam Singh Tailor 7 years 3400/
38. Satish Dharam Singh Tailor 7 years 3450/
39. Chandravir Sharma Rajpal Sharma Tailor 8 years 3450/
40. Javed Late Abdul Hamid Tailor 9years 3500/
41. Rameshwar Lotan Singh Tailor 7 years 3450/
42. Shatrugan Thakur Mahavir Thakur Tailor 7 years 3400/
43. Anupal Ramprasad Tailor 6 years 3300/
44. Manoj Kumar Raghunandan Prasad Tailor 7 years 3400/
45. Mahesh Chand Prem Das Tailor 8 years 3400/
46. Ashok Chaman Lal Tailor 7 years 3500/
47. Devi Singh Late Sh. Sanwalia Tailor 9 years 3450/
48. Mahavir Singh Late Sh. Ramswarup Tailor 8 years 3500/
49. Surendra Gyasa Ram Tailor 7 years 3450/
LIR No. 841/06/02 (Old No. I.D. 353/02) 4 of 56 pages
50. Zahid Nanhe Khan Tailor 8 years 3450/
51. Jitendra Kumar Late Sh. Birbal Tailor 7 years 3400/
52. Aziz Ahmad Nazir Ahmad Tailor 9 years 3500/
53. Arif Md. Hasan Tailor 9 years 3450/
54. Md. Halim Abdul Salam Tailor 9 years 3400/
55. Md. Shakil Ramzan Ali Tailor 9 years 3450/
56. Moharam Ali Md. Usman Tailor 9 years 3500/
57. Md. Ahmad Md. Nazir Tailor 9 years 3500/
58. Bashir Ahmad Md. Nazir Tailor 9 years 3400/
59. Lala Lalman Tailor 9 years 3300/
60. Md. Zuber Ajimullah Tailor 8 years 3500/
61. Anand Anand Pal Tailor 5 years 3300/
62. Antar Singh Bishan Singh Tailor 8 years 3500/
63. Md. Alam Sultan Ahmad Tailor 8 years 3400/
64. Md. Talib Md. Akbar Tailor 7 years 3400/
65. Md. Antahar Bashir Ahmad Tailor 9 years 3500/
66. Md. Ahmad Makdum Ali Tailor 7 years 3400/
67. Anwar Late Abdul Rahuf Tailor 9 years 3450/
68. Ramesh Pyarelal Tailor 8 years 3500/
69. Ramesh chand Bankelal Tailor 9 years 3500/
70. Anand Kumar Hira Lal Tailor 9 years 3500/
71. Braj Lal Timchal Tailor 9 years 3400/
LIR No. 841/06/02 (Old No. I.D. 353/02) 5 of 56 pages
72. Devender Singh Yad Ram Singh Tailor 9 years 3500/
(Neta)
73. Nasir (Neta) Md. Jannat Tailor 9 years 3500/
74. Md. Mehraj Mohram Ali Tailor 6 years 3300/
75. Md. Sahid Md. Kalim Tailor 6 years 3400/
76. Md. Lallan Late Md. Mansi Tailor 8 years 3300/
77. Md. Raees Md. Nasim Tailor 6 years 3200/
78. Israr Ahmad Md. Niyaz Ahmad Tailor 6 years 3200/
79. Md. Zuneit Md. Yasir Tailor 6 years 3200/
80. Ilyas Md. Bihari Tailor 7 years 3400/
81. Omvir Malleram Tailor 5 years 3400/
82. Guddu Yadav Sahib Lal Tailor 6 years 3400/
83. Shankar Hoti Lal Tailor 9 years 3300/
84. Radheyshyam Hoti Lal Tailor 9 years 3500/
85. Mahavir Singh Tailor 9 years 3500/
86. Ashok Mahavir Tailor 6 years 3200/
87. Suresh Chand Yadram Singh Tailor 7 years 3400/
88. Nawal Singh Yadram Singh Paster 6 years 3100/
89. Om Raja Dhan Bahadur Tailor 7 years 3300/
90. Akash Koirala Prakash Koirala Tailor 7 years 3300/
91. Rajiv Kshatriya Sun Bahadur Tailor 6 years 3400/
92. Dharmendra Mohan Tailor 7 years 3400/
LIR No. 841/06/02 (Old No. I.D. 353/02) 6 of 56 pages
93. Pappu Md. Abdul Hai Tailor 6 years 3400/
94. Vijay Jha Ajay Jha Tailor 6 years 3200/
95. Mumtaz Md. Usman Tailor 5 years 3250/
96. Mukhtar Ahmad Ghulam Mohammad Tailor 7 years 3350/
97. Dharampal Biharilal Tailor 7 years 3500/
98. Surender Kumar Gokul Singh Tailor 8 years 3450/
99. Munna Lal Desraj Tailor 8 years 3450/
100. Md. Musim Lal Mohammad Tailor 9 years 3500/
101. Navneet Bishambar Singh Paster 2 years 3300/
102. Titu Hargun Lal Tailor 7 years 3300/
103. Parmanand Pram Chand Tailor 7 years 3400/
104. Rohtas Balbir Singh Tailor 2 years 3500/
105. Rohtas Kumar Harphool Singh Tailor 5 years 3500/
106. Rajendra Kumar Harphool Singh Tailor 7 years 3500/
107. Birender Kumar Tilak Ram Tailor 2 years 3300/
108. Md. Mushir Zafar Ali Tailor 10 years 3500/
109. Surinder Kumar Chetram Singh Tailor 7 years 3500/
110. Ravindra Kumar Raghuvar Dayal Tailor 7 years 3400/
111. Jai Singh Prabhati Lal Tailor 10 years 3500/
112. Purushottam Baljeet Singh Tailor 9 years 3500/
113. Ratan Singh Padam Singh Tailor 8 years 3400/
114. Faqrooddin Khadim Rasool Tailor 5 years 3400/
LIR No. 841/06/02 (Old No. I.D. 353/02) 7 of 56 pages
115. Rajendra Kumar Sohan Pal Tailor 9 years 3500/
116. Bhim Sen Todar Malji Tailor 9 years 3500/
117. Rajendra Prasad Harbans Lal Tailor 7 years 3400/
118. Jai Kumar Ramchander Tailor 8 years 3400/
119. Karan Singh Ram Lal Tailor 7 years 3500/
120. Bhagwan Dass Shyamalia Tailor 7 years 3500/
121. Suhail Ahmad Sabbir Ali Tailor 7 years 3500/
122. Juned Ahmad Sabbir Ali Tailor 5 years 3300/
123. Farooq Umar Tailor 6 years 3300/
124. Ramesh Chand Prem Das Tailor 6 years 3400/
125. Ganga Das Asha Ram Tailor 6 years 3400/
126. Vinod Kumar Shankar Lal Tailor 6 years 3500/
127. Pawan Kumar Ram Avtar Tailor 10 years 3500/
128. Neeraj Ram Singh Tailor 8 years 3400/
129. Jitender Kumar Ram Singh Tailor 8 years 3400/
130. Anil Kumar Eo Budhram Tailor 4 years 3450/
131. Bhim Singh Ganga Das Tailor 9 years 3400/
132. Wasim Shafiq Tailor 5 years 3500/
133. Iqbal Munna Tailor 9 years 3500/
134. Nasim Jannat Hussain Tailor 8 years 3500/
135. Satish Baudh Gulab Singh Tailor 8 years 3500/
136. Nazar Md. Ezaz Tailor 5 years 3200/
LIR No. 841/06/02 (Old No. I.D. 353/02) 8 of 56 pages
137. Md. Rafiq Shamim Tailor 7 years 3400/
138. Nur Alam Munna Tailor 9 years 3500/
139. Naresh Gulab Singh Paster 4 years 3000/
140. Mukesh Kumar Rajey Lal Tailor 7 years 3500/
141. Nizam Jalaluddin Tailor 9 years 3500/
142. Gosh Md. Taj Md. Tailor 8 years 3500/
143. Md. Nasim Md. Kalim Tailor 8 years 3500/
144. Kamaal Bashir Tailor 9 years 3500/
145. Momin Abdul Khalik Tailor 8 years 3200/
146. Nur Alam Azgar Ali Tailor 10 years 3500/
147. Aslam Azgar Ali Tailor 8 years 3500/
148. Khalil Md. Daroga Miya Tailor 9 years 3400/
149. Shaukat Khalil Paster 4 years 3000/
150. Shahbuddin Mubarak Ali Tailor 8 years 3500/
151. Md. Tahir Akbar Tailor 9 years 3400/
152. Md. Shakil Munna Tailor 8 years 3500/
153. Manan Ilyas Ahmad Tailor 8 years 3500/
154 Narendra Harphool Singh Paster 4 years 3300/
155. Mukesh Ganga Das Tailor 5 years 3500/
156. Farman Bundu Khan Tailor 10 years 3500/
157. Gulfam Farman Tailor 7 years 3500/
158. Sandeep Mulchand Tailor 8 years 3500/
LIR No. 841/06/02 (Old No. I.D. 353/02) 9 of 56 pages
159. Ashok Harlal Singh Tailor 8 years 3500/
160. Mumtaz Abdul Hakim Tailor 9 years 3500/
161. Wasim Shafi Md. Tailor 6 years 3500/
162. Vijay Karan Singh Tailor 8 years 3400/
163. Kishore Subkhu Tailor 7 years 3500/
164. Khem Chand Singh Ram Krishna Singh Tailor 8 years 3500/
165. Kamal Prem Chand Paster 8 years 3400/
166. Jasvir Mehar Chand Tailor 7 years 3400/
167. Uday Jha Jagannath Jha Paster 8 years 2800/
168. Lal Mohammad Jan Mohammad Tailor 3 years 3200/
169. Uday Pal Late Doji Ram Tailor 7 years 3400/
170. Nirander Kumar Jai Pal Tailor 8 years 3500/
171. Kishan Harichand Tailor 7 years 3400/
172. Tinku Rajender Kumar Paster 7 years 3200/
173. Rambir Ram Singh Tailor 8 years 3500/
174. Gopal Dhrupad Prasad Tailor 8 years 3500/
175. Minu Tailak Raj Paster 5 years 3200/
176. Chaman Singh Hari Singh Tailor 8 years 3500/
177. Mukesh Kumar Om Prakash Tailor 7 years 3400/
178. Sopal Dhrupad Prasad Tailor 7 years 3500/
179. Jaswant Singh Sompal Tailor 7 years 3500/
180. Rajender Dharavir Tailor 6 years 3500/
LIR No. 841/06/02 (Old No. I.D. 353/02) 10 of 56 pages
181. Rakesh Sher Singh Tailor 7 years 3400/
182. Rajkumar Jai Chand Tailor 6 years 3400/
183. Bablu Jailal Paster 5 years 3200/
The said joint statement of claim filed against the management was
initially signed by only 53 workmen with the prayer for passing an award in
their favour and against the management with direction to the management
to reinstate them back in service with full back wages, continuity of service
and consequential benefits submitting that they were in the employment of
the management as per details given in Annexure 'A'. They were members of
Union namely 'Delhi Hosiery Workers Union' and were engaged by the
management as permanent workmen. The management had no complaint
against them regarding their performance and conduct during the course of
their employment. The management manufactures and exports ready made
garments and is employing around 800 workmen. It has been alleged that the
management used to deny benefits under labour laws and indulged in unfair
labour practices. It is alleged that the workmen were not paid minimum
wages, bonus, ESI, PF, overtime wages etc., and no appointment letters were
issued to them. It has been claimed that the workmen started organizing
themselves into trade union, the Delhi Leather Karigar Sangathan, to agitate
for their statutory benefits. The union made various complaints to the labour
department who conducted inspections in the establishment of the
LIR No. 841/06/02 (Old No. I.D. 353/02) 11 of 56 pages
management on various dates. The Union also submitted a Charter of
Demands on 13.12.2001 but the management refused to consider the same.
Thereafter, an industrial dispute was raised before the labour department and
subsequently, the workmen joined the 'Delhi Hosiery Workers Union'. The
management got annoyed with the workmen's trade union activities and
terminated their services w.e.f. 16.01.2002 during pendency of industrial
dispute before Conciliation Officer. At the time of termination of services of
the workmen herein, many workers junior to them were still in the
employment of the management and no notice in lieu of notice pay was
given to the workmen. Even though industrial dispute was pending before
labour department but no permission or approval was sought or obtained for
termination of their services.
The workmen sent demand notice through regd. AD to the
management on 18.01.2002 but the management did not respond. They made
complaint to labour department through union on 16.01.2002 on which
Labour Inspector visited the management and persuaded them to reinstate
the workmen in service but the management refused to do so. Thereafter, the
workmen initiated conciliation proceedings which ended in failure due to
uncompromising stand of the management. The workmen have remained
unemployed since the date of termination of their services. Hence the claim.
A separate joint statement of claim was filed by 32 more workmen
taking the same pleas as were taken by the other set of workmen in their
LIR No. 841/06/02 (Old No. I.D. 353/02) 12 of 56 pages
statement of claim, disclosing their their name, father's name, designation,
period of service & wages as given in separate Annexure'A' . However, two
workmen namely Rakesh S/o Sohan Lal and Ramesh Chand S/o Banke Lal
have signed both the statement of claim. Thus the present claim is in respect
of only following 83 workmen who signed the statement of claim :
S. No. Name Father's Name
1. Phool Kumar Vishal Singh
2. Shyam Kumar Sohan Lal
3. Radheyshyam Prem Chand
4. Harkesh Rajpal Singh
5. Suresh Ramchand
6. Tulsi Kunji Lal
7. Jamil Md. Din
8. Raja Vishal Singh
9. Sarvesh Ved Prakash
10. Mahboob Md. Abdul Rehman
11. Yakoob Md. Abdul Rehman
12. Khalil Garibulla
13. Sunil Mohan Lal
14. Surendra Mohan Lal
15. Kiran Pal Balwant Singh
16. Rakesh Sohanlal
LIR No. 841/06/02 (Old No. I.D. 353/02) 13 of 56 pages
17. Vinod Kumar Mukhtar Singh
18. Lal Chand Srichand
19. Suresh Kumar Late Hari Singh
20. Naresh Tikam Singh
21. Satish Dharam Singh
22. Chandravir Sharma Rajpal Sharma
23. Rameshwar Lotan Singh
24. Mahesh Chand Prem Das
25. Ashok Chaman Lal
26. Devi Singh Late Sh. Sanwalia
27. Mahavir Singh Late Sh. Ramswarup
28. Surendra Gyasa Ram
29. Zahid Nanhe Khan
30. Jitendra Kumar Late Sh. Birbal
31. Lala Lalman
32. Md. Zuber Ajimullah
33. Ramesh Pyarelal
34. Ramesh chand Bankelal
35. Devender Singh (Neta) Yad Ram Singh
36. Ilyas Md. Bihari
37. Suresh Chand Yadram Singh
38. Nawal Singh Yadram Singh
LIR No. 841/06/02 (Old No. I.D. 353/02) 14 of 56 pages
39. Dharampal Biharilal
40. Surender Kumar Gokul Singh
41. Titu Hargun Lal
42. Parmanand Pram Chand
43. Rohtas Balbir Singh
44. Rohtas Kumar Harphool Singh
45. Rajendra Kumar Harphool Singh
46. Birender Kumar Tilak Ram
47. Ravindra Kumar Raghuvar Dayal
48. Jai Singh Prabhati Lal
49. Purushottam Baljeet Singh
50. Ratan Singh Padam Singh
51. Rajendra Kumar Sohan Pal
52. Bhim Sen Todar Malji
53. Jai Kumar Ramchander
54. Karan Singh Ram Lal
55. Bhagwan Dass Shyamalia
56. Farooq Umar
57. Ramesh Chand Prem Das
58. Ganga Das Asha Ram
59. Vinod Kumar Shankar Lal
60. Pawan Kumar Ram Avtar
LIR No. 841/06/02 (Old No. I.D. 353/02) 15 of 56 pages
61. Neeraj Ram Singh
62. Jitender Kumar Ram Singh
63. Anil Kumar Eo Budhram
64. Nasim Jannat Hussain
65. Satish Baudh Gulab Singh
66. Nizam Jalaluddin
67. Md. Nasim Md. Kalim
68. Kamaal Bashir
69. Khalil Md. Daroga Miya
70. Md. Tahir Akbar
71. Narendra Harphool Singh
72. Farman Bundu Khan
73. Gulfam Farman
74. Khem Chand Singh Ram Krishna Singh
75. Kamal Prem Chand
76. Lal Mohammad Jan Mohammad
77. Tinku Rajender Kumar
78. Gopal Dhrupad Prasad
79. Chaman Singh Hari Singh
80. Sopal Dhrupad Prasad
81. Rajender Dharavir
82. Rakesh Sher Singh
LIR No. 841/06/02 (Old No. I.D. 353/02) 16 of 56 pages
83. Bablu Jailal
3. The management has contested the claim by filing writtenstatement
taking preliminary objections such as that the alleged workmen were
stranger to the management as they have never been in the employment of
the management and got no right or cause of action to file any claim against
the management; that there existed no relationship of employer and
employee; that no question arose of any settlement or award; that claim is
not entertainable; that the workmen have filed false and frivolous claim and
have abused the process of law; and that the claim is liable to be dismissed
as the same has not been verified as required under the law.
On merits, the averments made by the workmen have been denied and
it has been claimed that the workmen as mentioned in the AnnexureA are
stranger to the management who have never been in their employment. The
claim of the workmen is motivated by some vested interest to achieve their
ulterior motive and the workmen are being used as instrument who have
never worked with the management in either capacity. It is admitted to the
extent that the management is a manufacturer exporter of ready made
garments but it is denied that it employed around 800 workers. The
allegation that they were not provided statutory benefits have been denied.
Receipt of any Charter of Demand dated 13.12.2001 or of any other date
from the labour union or labour individually has been denied. However, it
LIR No. 841/06/02 (Old No. I.D. 353/02) 17 of 56 pages
has been submitted that the labour department had been conducting the
inspection of establishment of the management and everything was found in
order by them and there has been no warning or any other adverse direction
of the department against the management. It has been submitted that there
was no relationship of employer and employee between the management and
the workmen and therefore, there was no question of termination of their
service on 16.01.2002. It is admitted that the management is an industrial
management but did not have around 800 workmen on its roll at the time of
termination/dismissal of services of the workmen or at any point of time.
The receipt of demand notice dated 18.01.2002 is denied. Remaining
assertions made in the statement of claim have also been denied and it has
been submitted that the claim be dismissed with exemplary cost.
4. Workmen also filed rejoinder and on pleadings of the parties, my the
then Ld. Predecessor had framed the issues on 14.07.2003 as under :
1. Whether there exists relationship of employer
and employee between the parties?
2. As per terms of reference.
5. Vide order dated 19.04.2003, my Ld. Predecessor had imposed the
cost of Rs. 200/ per workmen on the management which was not paid and
an application for review was moved on behalf of the management. The said
application was dismissed vide order dated 02.12.2003 with a cost of Rs.
2000/ and the management was also proceeded exparte. Vide order dated
17.01.2004, an application moved on behalf of the management for setting
LIR No. 841/06/02 (Old No. I.D. 353/02) 18 of 56 pages
aside the exparte order was allowed subject to cost of Rs. 5000/ with
direction to pay the previous cost and cost imposed by the said order on the
next date, failing which defence of the management will be struck off.
Thereafter, vide order dated 09.07.2004, since cost was not paid by the
management, defence of the management was struck out by my Ld.
Predecessor.
6. In support of the claim, on behalf of the workmen, affidavits of 86
workmen were filed as WW1 to WW86. Vide order dated 01.02.2010, an
application dated 19.01.2010 moved on behalf of the management for
permission to allow the management to crossexamine the
workmen/witnesses and also to lead evidence was dismissed by this court.
The said order was challenged in Hon'ble High Court and Hon'ble High
Court in WP (C) No. 1025/2010, C.M. No. 2110/2010, passed the order dated
18.02.2010 as under :
"Mr. J.P. Sengh submits that the matter before the
trial court is fixed for 26.02.2010 for the evidence
of the respondents workmen and if the proceedings
before the trial court are not stayed then the present petition would become infructuous. Since the matter is under challenge before this court, therefore, let the petitioner crossexamine the witnesses on the next date or on the subsequent dates. It is made clear that crossexamination of the witnesses shall be subject to the outcome of the final decision of the present petition."
LIR No. 841/06/02 (Old No. I.D. 353/02) 19 of 56 pages However, vide order dated 15.07.2010, Hon'ble High Court disposed of the said WP (C) No. 1025/2010, with following consent order order:
"(a). The petitioner is permitted to crossexamine the workmen who are the witnesses of the respondents and have their affidavits of examinationinchief on record, subject to payment of cost of Rs. 1,000/ per workman (witness). The petitioner shall pay the said amount on the same day immediately after the completion of cross examination of the witness.
(b). The trial court will try to complete the evidence of the parties which include the petitioner witnesses within a period of twelve months.
(c). The petitioner shall pay a sum of Rs. 10,000/ as cost of the present proceedings to the learned counsel for the respondent within three weeks from today.
(d). Both the parties shall appear before the Trial Court on 11.08.2010.
In view of the aforesaid, the order dated 2nd December, 2003 and impugned order dated 1st February, 2010 are set aside.
With these three directions the present writ petition is disposed of."
7. S/Sh. Nur Alam S/o Mohd. Nasir, Lala S/o Lalman, Suhail Ahmad S/o Sabir, Mahesh S/o Chhote Lal, Vinay Kumar S/o Ram Bahadur Rao, Md. Arif S/o Mohd. Hanif, Md. Anees S/o Safeek, Pawan S/o Teeka Ram, Muneer Ahmad S/o Khadim Rasul & Mustakeem S/o Mohd. Ayub made statement on 10.11.2005 settling their dispute with the management. LIR No. 841/06/02 (Old No. I.D. 353/02) 20 of 56 pages However, out of these, names of only 3 persons S/Sh. Lala S/o Lalman, Suhail Ahmad S/o Sabir, Mahesh S/o Chhote Lal appear in the reference and out of them only one workman Lala S/o Lalman has signed the statement of claim.
8. The reference was received in respect of total 183 workmen out of which only 83 workmen have signed the statement of claim. Out of the said 83 workmen who have signed the statement of claim, following 15 workmen did adduce any evidence :
1. Lal Mohammad S/o Jan Mohammad
2. Tinku S/o Rajendra Kumar
3. Rajender S/o Dharavir
4. Rakesh S/o Sher Singh
5. Khalil S/o Garibulla
6. Nasim S/o Jannat Hussain
7. Nizam S/o Jalaluddin
8. Kamaal S/o Bashir
9. Pawan Kumar S/o Ram Avtar
10. Titu S/o Hargun Lal
11. Rohtas S/o Balbir Singh
12. Suresh Chand S/o Yadram Singh
13. Nawal Singh S/o Yadram Singh
14. Ramesh Chand S/o Bankelal
15. Zahid S/o Nanhe Khan Therefore, these 15 workmen are not entitled for any relief. Accordingly, 'No Relief Award' is passed with respect to them.
9. The following 11 workmen only tendered their respective affidavits in lieu of their examinationinchief but did not turn up for their cross LIR No. 841/06/02 (Old No. I.D. 353/02) 21 of 56 pages examination :
1. Sunil (WW4) S/o Mohan Lal 2 Dharampal (WW13) S/o Bihari Lal
3. Mohd. Nasim (WW19) S/o Mohd. Kalim
4. Surender Kr. (WW36) S/o Gokul Singh
5. Ganga Dass (WW40) S/o Asha Ram
6. Ilyas (WW45) S/o Mohd. Bihari
7. Anil Kumar (WW52) S/o Eo Budhram
8. Raja (WW63) S/o Vishal Singh
9. Ashok (WW67) S/o Chaman Lal
10. Purushottam (WW70) S/o Baljeet Singh
11. Lala (WW76) S/o Lalman Therefore, testimony of aforesaid 11 workmen cannot be read in evidence and they are also not entitled for any relief and 'No Relief Award' is passed with respect to them.
The remaining 57 workmen appeared for their crossexamination. Total 86 WWs have appeared in the witness box, out of them WW 85 is not a workman but an official witness from Employees Provident Fund Organization, WW 46 Naresh Kumar S/o Tikam Singh and WW57 Khem Chand S/o Ram Kishan have also appeared in the witness box as WW73 and WW86 respectively for their crossexamination and thus only 83 workmen have appeared in the witness box. Out of said 83 WWs, the following 7 WWs' name do not appear in the reference :
1. WW29 Ratan Lal Shiv Charan Singh
2. WW39 Sushil Raja Ram
3. WW47 Sonu Md. Deen LIR No. 841/06/02 (Old No. I.D. 353/02) 22 of 56 pages
4. WW62 Prem Singh Gyasa Ram
5. WW78 Mahipal Singh Prakash
6. WW80 Rasheed Md. Idris
7. WW83 Rohtash Baljeet Singh Since reference does not bear the name of these 7 claimants, the court is not required to entertain their claim in absence of their name in the reference and therefore, no order is required to be passed qua them.
The following 11 WWs did not appear for their crossexamination and therefore, their testimony cannot be read in evidence, as such they are not entitled for any relief. Hence 'No Relief Award' is passed qua them :
1. WW4 Sunil S/o Sh. Mohan Lal
2. WW13 Dharam Pal S/o Sh.Bihari Lal
3. WW19 Naseem S/o Sh.Kalim
4. WW36 Surender S/o Sh.Gokul Singh
5. WW40 Ganga Dass S/o Sh.Asha Ram
6. WW45 Iliyas S/o Sh.Bihari Lal
7. WW52 Anil Kumar S/o Sh.Budh Ram
8. WW63 Raja S/o Sh.Vishal
9. WW67 Ashok Kumar S/o Sh.Chaman Lal
10. WW70 Purushottam S/o Sh.Baljeet Singh
11. WW76 Lala S/o Sh.Lalman However, the following 5 workmen's name appear in the reference but they did not appear for their crossexamination. They also did not sign the statement of claim. Therefore, they are not entitled for any relief. Hence 'No Relief Award' is passed qua them.
1. WW21 Mahesh S/o Chhote Lal Yadav LIR No. 841/06/02 (Old No. I.D. 353/02) 23 of 56 pages
2. WW30 Suhail S/o Sabir
3. WW32 Harkesh Kumar S/o Raj Pal Singh
4. WW48 Juned Ahmad S/o Sabir Ali
5. WW49 Anu Pal S/o Ram Parasad However, three workmen namely Surender Kumar S/o Chet Ram Singh, Javed S/o Abdul Hameed & Sandeep S/o Mool Chand have also not signed the statement of claim but they have appeared for their cross examination as WW23, 24 & 31 respectively. Since signing of statement of claim is a procedural requirement and in the absence of signatures on the statement of claim, these three workmen cannot be deprived of the benefit, if any and therefore, the present claim in respect of above three workmen namely S/Sh. Surender Kumar S/o Chet Ram Singh, Javed S/o Abdul Hameed & Sandeep S/o Mool Chand shall also be considered in addition to the following 57 WWs/workmen who have even signed the statement of claim besides presenting themselves for their crossexamination: S. No. WW No. Name of workman Father's name
1. WW1 Vinod Kumar Mukhtar Singh
2. WW2 Devender Singh Yad Ram Singh
3. WW3 Surendra Gyasa Ram
4. WW5 Surendra Mohan Lal
5. WW6 Birender/Virender Kr. Tilak Ram
6. WW7 Rajendra Kumar Harpool Singh
7. WW8 Rohtash Kumar Harpool Singh
8. WW9 Narendra Harpool Singh LIR No. 841/06/02 (Old No. I.D. 353/02) 24 of 56 pages
9. WW10 Jitendra Kumar Late Sh. Birbal
10. WW11 Rajendra Kumar Sohan Pal
11. WW12 Farooq Umar
12. WW14 Lal Chand Srichand
13. WW15 Jamil Md. Din
14. WW 16 Shyam Kumar Sohan Lal
15. WW17 Ratan Singh Padam Singh
16. WW18 Karan Singh Ram Lal
17. WW20 Parmanand Prem Chand
18. WW22 Jitender Kumar Ram Singh
19. WW25 Radheyshyam Prem Chand
20. WW 26 Bablu Jailal
21. WW27 Khalil Md. Daroga Miya
22. WW28 Ramesh Chand Prem Das
23. WW33 Chaman Singh Hari Singh
24. WW34 Satish Dharam Singh
25. WW35 Sopal Dhrupad Prasad
26. WW37 Suresh Kumar Late Hari Singh
27. WW38 Ravindra Kumar Raghuvar Dayal
28. WW41 Yakoob Md. Abdul Rehman
29. WW 42 Mahavir Singh Late Sh. Ramswarup
30. WW43 Satish Baudh Gulab Singh
31. WW44 Vinod Kumar Shankar Lal
32. WW50 Chadravir Sharma Rajpal Sharma
33. WW51 Tulsi Kunji Lal
34. WW53 Jai Singh Prabhati Lal LIR No. 841/06/02 (Old No. I.D. 353/02) 25 of 56 pages
35. WW54 Sarvesh Ved Prakash
36. WW55 Rameshwar Lotan Singh
37. WW56 Neeraj Ram Singh
38. WW58 Ramesh Pyarelal
39. WW 59 Devi Singh Late Sh. Sanwalia
40. WW60 Mahboob Md. Abdul Rehman
41. WW61 Suresh Ramchand
42. WW64 Bhagwan Dass Shyamalia
43. WW65 Gulfam Farman
44. WW66 Mahesh Chand Prem Das
45. WW68 Jai Kumar Ramchander
46. WW69 Rakesh Sohanlal
47. WW71 Kamal Prem Chand
48. WW72 Gopal Dhrupad Prasad
49. WW73 Naresh Tikam Singh
50. WW74 Farman Bundu Khan
51. WW 75 Md. Zuber Ajimullah
52. WW77 Kiran Pal Balwant Singh
53. WW79 Bhim Sen Todar Malji
54. WW81 Phool Kumar Vishal Singh
55. WW82 Md. Tahir Akbar
56. WW84 Pawan Ram Avtar
57. WW86 Khem Chand Ram Kishan Singh Therefore, the present claim is under consideration in respect of the above 60 workmen who have contested their claim.
LIR No. 841/06/02 (Old No. I.D. 353/02) 26 of 56 pages Workmen's evidence was closed by Ld. AR for the workmen on 21.09.2010 and it was prayed that in the chiefexamination of WW62 recorded on 28.08.2010, the name of Bhim Singh S/o Dasa Ram was typed in place of Prem Singh S/o Gyasa Ram. However, his name was not mentioned in the Annexure 'A' attached to the reference nor the joint statement of claim was signed by him. Therefore, he is not entitled for any relief and 'No Relief Award' qua him is passed.
Vide order dated 25.11.2010, the application dated 26.02.2010, moved on behalf of the workmen for summoning record from the management was allowed with direction to the management to produce the musterroll, wages register, attendance register and balance sheets since the year 1992 till 16.01.2002 on the next date and in case management does not have these documents, it shall file appropriate affidavit with copy to applicants/AR.
10. On behalf of the management, MW1 Sh. Gajender Singh tendered his affidavit Ex. MW1/A relying on documents Ex. MW1/1 to Ex. MW1/25. MW2 Sh. Ramesh Somani also appeared in the witness box who tendered his affidavit Ex. MW2/A relying on documents Ex. MW2/1, Ex. MW2/A & B and Ex. MW2/3 to Ex. MW2/5 (however, Ex. MW2/1, Ex. MW2/A & B and Ex. MW2/3 were objected by Ld. AR for the workmen being only photocopies and not exhibited by signatory). After crossexamination of MWs, management's evidence was closed by Ld. AR for the management.
11. I have heard submissions from Ld. ARs for the parties and also gone LIR No. 841/06/02 (Old No. I.D. 353/02) 27 of 56 pages through the writtenarguments filed on behalf of the parties and considered the same in the light of relevant provisions of law. I have also gone through the record and my findings on the issues are as under: ISSUE NO. 1
12. The onus to prove this issue was not placed by my Ld. Predecessor on either party. However, in view of the authority reported as RANGE FOREST OFFICER VS. ST HADIMANI, AIR 2002, SC 1147, onus was to be discharged by the workmen. Ld. AR for the workmen has submitted that around 74 workmen turned up before the court for their cross examination in order to prove their stand. Workman/WW81 Sh. Phool Kumar has exhibited relevant documents in his examination. Management has produced two witnesses viz. MW1 Sh. Gajender Singh and MW2 Sh. Ramesh Somani and MW1 Sh. Gajender Singh in his crossexamination stated that he had joined the management in the year 2002. He was not in the employment of the management during the period of dispute between the workmen and the management. MW2 Sh. Ramesh Somani in his cross examination stated that he was not in the employment of the management and had wrongly written in his affidavit that he was Senior Manager Finance & Exports. Ld. AR for the workman submitted that management has failed to produce any witness who was working with the management during the relevant period of dispute and therefore, testimony of MW1 and MW2 could not be relied. Moreover, their documents are false and fabricated. LIR No. 841/06/02 (Old No. I.D. 353/02) 28 of 56 pages Ld. AR for the workman also submitted that defence of the management has been struck of by the court. Even then without prejudice to the said contention, it is well settled principle of law that initial onus and burden to prove employeremployee relationship is on the workmen. However, onus could be shifted on the management either by producing cogent evidence or by summoning the same from the management. Workmen have pleaded that management was not providing legal facilities to them like appointment letter, leave record and therefore, in order to shift onus on the management, workmen had moved an application dated 26.02.2010 for summoning record which was partly allowed by the court with direction to the management to produce balance sheet, muster roll, attendance register and wage register but the management has not produced complete record and the record filed by the management was false and fabricated, which fact is established from crossexamination of MW1 who affirmed the suggestion that father's name of most of the workmen are not mentioned even on the wage register/record and wherever the designation and father's name are mentioned, the same has been filled up later on in different pen. In reply to one question MW1 stated that the management was not engaged in tailoring job and therefore question to show any record that the workers were performing the job of tailoring does not arise but he admitted that whatever material was exported by the management could not be produced without tailoring job. In reply to another question as to what job LIR No. 841/06/02 (Old No. I.D. 353/02) 29 of 56 pages is done by the Cutters appointed by the management, MW1 stated that there is no Cutter appointed by the management. However, he admitted that in the wage register for April 1996 the designation of Shambhu Singh has been written as Cutter.
Ld. AR for the workmen further submitted that aforementioned contradictory statement of MW1 clearly establishes that management had filed a false and fabricated record in which entries were made lateron with different pen. Moreover, full record was not produced by the management as per direction of the court. The court had also directed the management to produce balance sheet of the management and in compliance of the same, management produced balance sheet showing manufacturing/fabrication expenses as follows :
Year Expenses
199293 1320136.00
199394 10583890.00
199495 16471650.00
199596 18006673.00
199697 14620256.00
199798 15755032.00
199899 16018160.00
200001 33129165.00
200102 22375560.00
As per workmen, wages paid to them were not shown in the relevant head and in order to prove the payment of their wages, workmen had prayed for direction to the management to produce the record pertaining to the LIR No. 841/06/02 (Old No. I.D. 353/02) 30 of 56 pages payment of wages paid towards manufacturing expenses in the balance sheet. The said prayer was allowed by the court vide order dated 26.03.2011 as under:
"Deferred as witness is directed to produce the record pertaining to the payments made towards manufacturing expenses mentioned in the balance sheet Ex. MW1/19 to Ex. MW1/25."
The witness of the management did not produce the complete record on next date and crossexamination of MW1 recorded on 23.04.2011 was as under :
"Today I have brought the bills/documents available with respect to manufacturing expenses head for the period from 19971999. Copy of the same is Ex. MW1/26 (colly) to Ex. MW1/29 (colly). No other document has been brought by me today in this regard."
In reply to a question that expenses as per the document Ex. MW1/26 to Ex. MW1/29 are far less than the actual expenses incurred on the manufacturing expenses head, the witness said it is correct as per record. In reply to another question that the witness has not produced the entire record deliberately because the said record bears expenses paid to the workmen towards their wages, the witness said "it is correct". Ld. AR for the workman has submitted that the management had not produced the above mentioned documents intentionally because the said record bears the expenses paid to the workmen towards their wages. Even otherwise, documents produced by LIR No. 841/06/02 (Old No. I.D. 353/02) 31 of 56 pages the management i.e. MW1/26 (colly) to Ex. MW1/29 (colly) are false and fabricated as date and receipt number of the the said documents are not tallying with the date of issue of the receipt. If receipt No. 1, 2 and 3 are perused and compared, it is revealed that receipt No. 3 was issued on earlier date as compared to receipt No. 2. Furthermore, in some receipts, items are calculated wrongly which shows that the said receipts are false and bogus. Relying on the authority reported as 'M/s. Automobile Association of Upper India Vs. Presiding Office Labour Court, 2006 LLR 852 DEL', Ld. AR for the workmen submitted that initial burden of proof pertaining to the employeremployee relationship lies on the workmen and same could be discharged by adducing cogent documentary evidence or summoning the same from the management. The management has failed to produce documents despite direction of the court, as such an adverse inference is liable to be drawn against the management that it had intentionally withheld the record. In the present case, management filed the incomplete as well as false and fabricated record. Attendance register filed by the management is false and fabricated as such an adverse inference is liable to be drawn against the management that they had withheld the original attendance record in which attendance of the present workmen used to be marked. In the present case, management has produced only the attendance register and failed to produce the musterroll in spite of clear direction of the court. As per section 25D of the 'Act', employer is bound to maintain musterroll in which LIR No. 841/06/02 (Old No. I.D. 353/02) 32 of 56 pages workmen will mark their attendance themselves and therefore, adverse inference is liable to be drawn against the management.
Ld. AR for the workmen further submitted that in the written statement, the management has alleged that the present workmen were not their employee but they were working with the independent fabricator/contractor. However, when the question was put to MW1 during his crossexamination dated 01.02.2011 as to how many workmen were working with the contractor and with whom the present workmen were working, MW1 said that he had no knowledge which clearly falsifies the defence of the management because the management's witness does not know the name of contractor with whom the present workmen were allegedly working. Ld. AR for the workmen further submitted that the management has pleaded that they were manufacturing and exporting leather goods. The defence of the management has been struck off by the court as such management could not use it in their favour as MW1 has resiled from its defence and stated that they are taking the work of tailoring from fabricator as such they were not in a position to bring the record. However, it has not been pleaded in writtenstatement. MW1 has even admitted that whatever material was exported by the management could not be produced without using the tailoring job.
Ld. AR for the workmen referred to the authority reported as 'Hussainbhai Vs. Allath Factory, 195083, SCLJ 436', wherein it was held LIR No. 841/06/02 (Old No. I.D. 353/02) 33 of 56 pages that : "when so called contractual employee are producing goods or services and these goods or services are for other person, then he would be the 'real employer'. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprises, then absence of direct relationship or the presence of dubious intermediaries or the make believe trapping of detachment from the management cannot snap the real life bond".
The said judgment was followed by Hon'ble Supreme Court in the matter of M/s BHEL Vs. State of U.P., 2003 (98) FLR 826, wherein, it was held that even if the workmen are not doing the work which is an integral part of the management industry, even then they would be the employee of management if they are working for producing services and goods for them. Moreover, Supreme Court had drawn adverse inference against the management for not producing the summoned documents.
In the present case also, Ld. AR submitted that it was admitted position that the work of the claimant/workman was important for running/subsistence of the management. MW1 in his crossexamination has admitted that whatever material was exported by the management could not be produced without the job of tailoring. Ld. AR for the workmen further submitted that Supreme Court in its various decisions had expounded control and supervision test and in the present case some workmen were working on the post of tailor and MW1 during his crossexamination on LIR No. 841/06/02 (Old No. I.D. 353/02) 34 of 56 pages 01.02.2011 admitted that whatever material was exported by the management, every item thereof was purchased by the management. Although during his earlier crossexamination, MW1 had denied the suggestion that material from which the leather goods were prepared was supplied by the management. However, when the balance sheets were shown to him, he admitted the said fact in his crossexamination (because in the balancesheet management had shown the purchase of every item required for the manufacture of leather goods) which clearly shows that raw material was supplied by the management. MW1 further admitted that defective material used to be returned to the fabricator and therefore, there was an element of rejection of finished product which clearly shows exercise of control and supervision over the present workmen by management. MW1 further admitted that specification about the requirement of jackets was decided by the management and therefore, even going by the control test, present workmen have proved the employeremployee relationship. Ld. AR for the workmen further submitted that workmen had specifically summoned the wage register to prove that the management was paying them wages but the management for the reasons best known to them did not produce the same and therefore, adverse inference also deserves to be drawn against the management.
13. Ld. AR for the management however, submitted that workmen were required to prove with documentary evidence that they have worked with the LIR No. 841/06/02 (Old No. I.D. 353/02) 35 of 56 pages management for more than 240 days in any calender year. Around 74 workmen turned up for their crossexamination and admittedly not a single document had been filed or relied by the workmen. Photocopy of alleged charter of demand, copy of claim and demand notice were not proved by the workmen. No request was made to lead secondary evidence meaning thereby that the workmen never served the management. They have first time raised charter of demand and filed the joint statement of claim for coverage of workmen on musterroll of the management and to abolish the contract labour system. These documents were never relied by the workmen during their examinationinchief. However, on perusal of same for collateral purpose it transpires from the first para of the alleged charter of demand that the workmen made demand that the management should take all the workmen on its own rolls. The workmen admitted that they were not on the rolls of the management at that time. As such the claim of the workmen that they had worked with the management as permanent employee is devoid of merits. Admittedly, they were not in the employment of the management till 13.12.2001 and therefore, termination of their services by the management on 16.01.2002 does not arise. The name of workmen were not reflected on the record of the management because till 31.12.2001 they were only striving to enter into the employment through back door which was not possible. In para No. 1 they alleged that they demanded that the contract system be abolished totally. With respect to the abolition of Contract Labour System, LIR No. 841/06/02 (Old No. I.D. 353/02) 36 of 56 pages the workmen had to first disclose the name of the contractor and in absence of that the workmen have only attacked in air as such the present dispute is nothing but a case of nonjoinder /misjoinder of parties. There was no explanation from the side of workmen as to why the dispute u/s. 2 (k) of the 'Act' was converted u/s 2 (A) of the 'Act'. The conciliation officer in connivance with the workmen referred the dispute in mechanical manner without initiating the conciliation proceedings. The workmen have failed to disclose the name of their respective contractors/fabricators under which they had worked and in the absence of concrete evidence, all the allegations are based upon conjectures and surmises. By no stretch of imagination any casual relationship exists between the parties on account of supply of raw materials to any fabricators. In any case, the management had only dealt with the fabricators to whom the contract to complete the desired work was awarded and accordingly the management had paid for. The fabricators having their own infrastructure/factories for the purpose of completing the desired work. The factories were being run by the fabricators at the different places which were at far off from the premises of the management. It was not the business of the management to enquire whether the statutory compliance of labour laws was being done by the contractor/fabricator or not, to whom the job was assigned. The Pay Master i.e. Fabricator was not impleaded in the above industrial dispute, hence it is a case of nonjoinder of necessary parties. Apart from this, the workmen never alleged in the LIR No. 841/06/02 (Old No. I.D. 353/02) 37 of 56 pages statement of claim and affidavit that the relationship of fabricator and the management was camouflage, bogus and sham. Although, most of the workmen during their crossexamination deposed that they had not filed any documentary proof to show that they had worked with the management as tailor. Moreover, they have not made any written complaint against the management for noncompliance of statutory benefits against the management.
He further submitted that MW2 Sh. Ramesh Somani appeared before the court and relied on the death certificate of Late Sh. B.N. Sharma and his wife Late Durga Devi Sharma and it is beyond imagination that a person in old age/poor health will ever supervise the services of large number of tailors. The averments made by the workmen in their evidence are full bundle of lies. Still the burden of proof that the conciliation proceedings ended on the point of termination, lies upon the workmen but they never summoned the conciliation file to substantiate their stand even after the management disputed this fact. In absence of demand notice and conciliation proceedings, the reference is void ab initio. Management used to purchase the packed merchandise from the contractors/fabricators and sometime on account of exigency of work, the management used to issue raw material, tax and buttons etc., but in that eventuality leather garments used to be manufactured by the contractor/fabricator itself and there was no control and supervision of any employee of the contractors/fabricators. Since the LIR No. 841/06/02 (Old No. I.D. 353/02) 38 of 56 pages fabricator himself deemed to be the pay master of their workmen, the management has nothing to do with the mutual agreements entered into between the claimants and their respective fabricators. The registration of establishment and granting licenses are baseless objections.
He further submitted that MW1 Sh. Gajender Singh has produced the attendance register, wage register and balance sheet and no adverse inference can be drawn against the management. As per testimony of MW1, the case of workmen is demolished as the workmen admitted that they were working with the contractors but they opted not to disclose the name of their respective contractors. The manufacturing activities commenced in the year 2007 and accordingly the registration cum membership certificate issued by council for leather exports was amended to this effect on 17.08.2007. Ld. AR for the management relied on the authorities reported as:
1. Range Forest Officer Vs S.T. Hadimani, AIR 2002 SC 1147.
2. Workmen of Nilgiri CoOp. Markerting Society Ltd. Vs State of Tamil Nadu and Ors., 2004 LLR 351.
3. Municipal Corporations, Faridabad Vs Shri Niwas, 2004 8 SCC 195.
4. Surendernagar District Panchayat Vs Dahyabhai, AIR 2006 SC 110.
5. Automobile Association of Upper India Vs P.O. Labour Court II & Anr., 2006 LLR 851.
6. Kanpur Electricity Supply Co. Ltd. Vs Shamim Mirza, 2009I, LLN, 121.
7. Chander Sain and Others Vs J.B. Garments, 2010II LIR No. 841/06/02 (Old No. I.D. 353/02) 39 of 56 pages LLJ5 Del.
14. A perusal of statement of claim filed by the workmen shows that all the workmen have pleaded that they were engaged by the management. The period of their employment and their last drawn wages were mentioned in the Annexure 'A'. They have nowhere stated that they were working under the contractor or fabricator. They have alleged that the management was not providing statutory facilities to them and was not issuing appointment letters to them. The management has denied any relationship between the workmen and the management claiming that the workmen were stranger to the management. Almost all the workmen through their respective affidavits have corroborated the averments made in the statement of claim, as such the argument raised by Ld. AR for the management that workmen admitted that they were working with contractors is not tenable. The workmen are under no obligation to explain how the dispute was referred by labour authorities. There is no force in the argument that an aged person cannot supervise the services of large numbers of tailors as a Supervisor can always be employed.
Since the workmen have failed to prove the 'Charter of Demand' formally and have also failed to prove any documentary evidence as per section 33 of the 'Act' regarding pendency of their dispute during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National Tribunal and therefore, provisions of section 33 of the LIR No. 841/06/02 (Old No. I.D. 353/02) 40 of 56 pages 'Act', are not attracted. Sh. Phool Kumar/WW81 in his crossexamination has denied the suggestion that he had not worked with the management as tailor at any point of time. He denied the suggestion that the management had not employed around 800 workers. He admits that he did not make any complaint with labour department against the management regarding non compliance of statutory benefits to him. Other workmen also deposed almost on similar lines and non of them could prove on record any document of his employment with the management. The workmen have taken the plea that the management had not issued the letter of appointment nor their signatures were taken on wage register, and they were not provided PF and ESI benefits.
However, on behalf of the workmen, an application was moved in the court for direction to the management to produce the record and said application was allowed by the court vide order dated 25.11.2010 with direction to the management to produce the musterroll, wageregister, attendanceregister and balancesheet from the year 1992 till 16.12.2010 which were not produced on 16.12.2010 and as requested, case was adjourned for production of record and for supply of copies to Ld. AR for the workman for 17.01.2011. On that day, further adjournment was prayed for tracing few documents from the record of the Chartered Accountant. The said originals were not produced by the management even on 25.01.2011. However, MW1 Sh. Gajender Singh had produced only attendanceregisters LIR No. 841/06/02 (Old No. I.D. 353/02) 41 of 56 pages for the year from 1993 till 2002, wagesregister from 1992 till 2002 and balance sheets from 1992 till 2002, Ex. MW1/1 to Ex. MW1/25. He did not produce the record for the year 1992 and for the period from 2008 to 2010.
15. In his crossexamination, MW1 Sh. Gajender Singh admits that he joined the management in the year 2002 and was not in the employment of the management during the period of dispute between the workmen and the management which shows that he had no personal knowledge of facts. In his crossexamination, MW1 admits that the management used to receive the material from the contractor which used to be exported. He admitted that the management was dealing in leather goods but denied the suggestion that the material was supplied by the management. He admitted that besides the leather goods every item required for manufacture of leather goods was purchased by the company and was reflected in the balancesheet. However, MW1 failed to disclose the names of the contractors on the plea that the same was not available on record. Since the management has claimed that they were directly dealing with the contractors/fabricators, the names thereof were required to be disclosed by management and not by workmen who claimed to be working with the management who was not providing the statutory facilities. MW1 also admitted that in the record of attendance filed by him, his name does not exist. He denied the suggestion that he knew the names and residential addresses of the workmen who were in the employment of the management. MW1 denied the suggestion that he had LIR No. 841/06/02 (Old No. I.D. 353/02) 42 of 56 pages joined the management as electrician since 1992. MW1 admits that designation of the workmen have not been mentioned in the attendance record filed by him. MW1 also admitted that designation and father's name of most of the workmen were not mentioned even on the wage register/record and where ever the designation and father's name was mentioned, the same has been filled up later on in different pen which shows that the documents were manufactured subsequently. In reply to a question that he had not produced any record to show that workers were performing the job of tailoring, MW1 stated that management was not engaged in tailoring job therefore, the question of any such record does not arise although he admitted that whatever material was exported by the management could not be produced without using the tailoring job, as such his testimony cannot be believed. He denied the suggestion that the tailoring job was of permanent nature with the management.
In his further crossexamination on 19.02.2011, MW1 disclosed the name of some of the contractors engaged by the management for tailoring job but again claimed it to be fabrication job but he pleaded ignorance about number of workers working with said contractors. He was unable to disclose the name of contractor with whom the present workmen were working. He denied the suggestion that all the workmen were performing their duties with B.N. Enterprises. He denied the suggestion that management was having any written contract with the contractors. He was LIR No. 841/06/02 (Old No. I.D. 353/02) 43 of 56 pages also unable to state whether the contractors whose names were disclosed by him had any license under Contract Labour Regulation Act. He had no knowledge whether the management had obtained any license under the said Act and stated that information about any license of registration must be in the knowledge of Managing Director of the management but the said Managing Director was not produced in the court for the reasons best known to him. MW1 initially stated that the management was a proprietorship concern but also claimed that one Managing Director Sh. Vijay Sharma is Director of the management which is selfcontradictory because in a proprietorship concern, there is no question of appointment of any Director. MW1 admitted that the management used to count the material received and was also checked randomly and defective material on checking used to be returned to the fabricator. He admitted that in the wage register of April 1996, the designation of Shambhu Singh has been written as Cutter. He explained that Master used to prepare sample and he was also Pattern Master as well design Master. In reply to the question that earlier he had stated that the Master used to prepare the design but on that day he had assigned more duties to the Master, he stated that both his statements were correct. He admitted that design was prepared by the Master and Sample Master used to prepare the sample. He added that Cutter used to cut after seeing the pattern. Above admission of MW1 shows that the management had employed their own workmen whose record was not produced deliberately. He denied the LIR No. 841/06/02 (Old No. I.D. 353/02) 44 of 56 pages suggestion that the cut material was stitched by the workmen and stated that cut material was handed over to the fabricator to get it stitched. He denied the suggestion that workmen were employed by the management but management was showing their fictitious record with the contractors. MW1 pleaded ignorance that management used to reflect the expenses incurred by it on manufacture of the goods in the company. He admitted that whatever payment was made by the management in cash or through cheque used to be entered in the balancesheet and in respect of all the bills, vouchers were prepared and payments were accordingly made. He also pleaded ignorance that all the expenses towards payment to the workmen as wages or expenses of manufacture of goods or payment to the contractor have been shown in the balancesheet and stated that information in this regard might be available only with the Chartered Accountant. He admits that the day to day payments from the company is made by the staff. He admitted that documents Ex. MW1/26 (colly) to Ex. MW1/29 (colly) produced by him show far less then the actual expenses incurred on the manufacturing expenses head which shows that the management has concealed the fact regarding payment of wages to the workmen in the balance sheet. No document regarding payment to the workmen has been produced to show the payments even by vouchers as such it is established that the management has intentionally not produced the record.
16. MW2 Sh. Ramesh Somani is the Chartered Accountant but in his LIR No. 841/06/02 (Old No. I.D. 353/02) 45 of 56 pages affidavit he mentioned his designation as Senior Manager Finance & Export. In the crossexamination, he admitted that he was not in the employment of the management. He admits that he had wrongly written in his affidavit that he was Senior ManagerFinance & Export. He denied the suggestion that any of the workmen in the dispute was in the employment of M/s. B.N. Enterprises. According to him, the management has not got registration under Contract Labour Regulation Act and he has no knowledge that the contractor had taken any license. He denied the suggestion that he was connected with the management and deposed falsely. Therefore, it is established on record that MW2 was not at all in the employment of the management and MW1 was not in the employment of management during the period of dispute between the workmen and the management. The order dated 09.07.2004 whereby, defence of management was struck off has not been challenged by the management and as per order dated 15.07.2010 the consent order was passed by Hon'ble High Court against the order dated 01.02.2010 passed by this court. In the said application, the management had only prayed for opportunity to crossexamine the workmen and to lead their evidence but no application has ever been moved on behalf of the management to recall the order regarding striking of its defence. Admittedly, the management was manufacturing export garments and claimed that these were being got manufactured from the contractors but the management has failed to produce any written contract. The names of such contractors were LIR No. 841/06/02 (Old No. I.D. 353/02) 46 of 56 pages not disclosed by the management in its written statement and also in the affidavit of MWs. Even though MW1 initially claimed that the material was being got manufactured by the contractors but later on he stated that material was being got manufactured by the fabricators but no agreement/document in this regard has been produced. Since the management has failed to prove on record that they actually got the goods manufactured from the contractors or fabricators, it is established that workmen were employed with the management but proper record was not prepared/maintained intentionally. Workmen were being paid in cash but even vouchers regarding payment of wages to them were not produced by the management. Despite direction of the court, management failed to produce musterroll record which is mandatory u/s 25D of 'Act' which provides that "notwithstanding that workmen in any industrial establishment have been laid off, it shall be the duty of every employer to maintain for the purpose of this Chapter a muster roll, and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours", which could have reflected the payment of wages to its employees. Since the management has failed to produce the record as per direction of the court, in view of authority reported as "Municipal Corporation, Faridabad Vs. Sriri Niwas (2004) 8 SCC 195:
2004 (103) FLR 187: 2004 (23) AIC 690", an adverse presumption u/s 114 Indian Evidence Act deserves to be drawn against the management that the LIR No. 841/06/02 (Old No. I.D. 353/02) 47 of 56 pages management did not produce the said record because if the said record was produced it would have been proved on record that the workmen herein were in the employment of the management. MW1 has admitted that in the balance sheet produced by him, manufacturing expenses have not been properly shown to conceal the actual expenses incurred on this head. Admittedly, the management had the control and right to reject the defective material to the contractor. The plea taken on behalf of the management that the workmen have failed to prove the Charter of Demands and demand notice is of no consequence because the copy of Charter of Demands placed on record at page number 867 to 869 shows that besides the present management, three other establishments were also operating and all the said establishments were also being run in the name of present management i.e. M/s. B.N. Enterprises with different addresses which clearly suggests that management itself was having control and supervision on other establishments and these establishments were being run by the management to show the workmen as employees of other establishments depriving them of their statutory benefits. The workmen have not referred to any contract between the management and any contractor/fabricator, nor the management has produced any written contract, as such the workmen were under no obligation to either allege or prove that any such contract between the management and contractor was sham or bogus. The contention raised by Ld. AR for the management that onus to prove the relationship was on the LIR No. 841/06/02 (Old No. I.D. 353/02) 48 of 56 pages workmen is tenable only to limited extent as the initial burden to prove the relationship was on the workmen but this burden had shifted on the management when court issued direction to the management to produce record but the management failed to produce the musterroll record and whatever record was produced by the management does not appear to be genuine record and appears to be manufactured as has been admitted by MW1. Testimony of MW1 & MW2 cannot be believed because MW2 was not employee of the management and MW1 was not in the employment of the management during the period of present dispute. It is also pertinent to note that many workmen who had filed the claim had settled the dispute with the management during the pendency of this case which establishes that those workmen were entitled for their statutory benefits against the management and that is why the management had amicably settled the dispute with them out of court. The management would not have settled the dispute with them if they had no relationship with the management.
17. As per authority reported as 'Hussainbhai Vs. Allath Factory, 195083, SCLJ 436', Hon'ble Supreme Court has expounded integration test and held that : "when so called contractual employee are producing goods or services and these goods or services are for other person, then he would be the real employer. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, then absence of direct relationship or the presence LIR No. 841/06/02 (Old No. I.D. 353/02) 49 of 56 pages of dubious intermediaries or the make believe trapping of detachment from the management cannot snap the real life bond."
Workmen were deemed to be employees of the management if they were working and producing goods and services for the management. As per authority reported as 'M/s BHEL Vs. State of U.P., 2003 (98) FLR 826', Hon'ble Supreme Court has held that even if the workmen is not doing the work which is an integral part of the management industry, even then they would be the employee of management if they are working for producing services and goods for them. In the present case, management has failed to prove on record that goods manufactured by the management were produced by them through contractors/fabricators under any contract and therefore only one inference can be drawn that the workmen were in the employment of the management and the management was not providing them statutory benefits such as letter of appointment, musterroll, attendance register, PF and ESI. In the case 'Bhilwara Dugdh Utpadak Sahkari S. Ltd. Vs. Vinod Kumar Sharma, Dead by LRs & Ors., Civil Appeal No. 2585/2006, decided on 01.09.2011', Hon'ble Supreme Court has held that : "in order to avoid their liability under various labour statutes employees are very often resorting to subterfuge by trying to show that their employees are, in fact, the employees of a contractor. It is high time that this subterfuge must come to an end. Labour statutes were meant to protect the employees/workmen LIR No. 841/06/02 (Old No. I.D. 353/02) 50 of 56 pages because it was realised that the employers and the employees are not on an equal bargaining position. Hence, protection of employees was required so that they may not be exploited. However, this new technique of subterfuge has been adopted by some employers in recent years in order to deny the rights of the workmen under various labour statutes by showing that the concerned workmen are not their employees but are the employees/workmen of a contractor, or that they are merely daily wager or short term or casual employees when in fact they are doing the work of regular employees. This court cannot countenance such practice any more. Globalization/liberalization in the name of growth cannot be at the human cost of exploitation of workers ..."
The copy of 'Charter of Demands' placed on record at page number 867 to 869 shows that besides the present management, three other establishments were also operating and all the said establishments were being run in the name of present management i.e. M/s. B.N. Enterprises with different addresses which clearly suggests that management itself was having control and supervision over other establishments and these establishments were being run by the management to show the workmen as employees of other establishments depriving them of their statutory benefits, although, the workmen were working for the establishment of the management namely M/s. B.N. Enterprises at E30, Patpar Ganj Main Market, Delhi91. Smt. Savita Chand, UDC from Employees Provident Fund has appeared as WW85 and has stated that prior to 2005 the company was registered with them as LIR No. 841/06/02 (Old No. I.D. 353/02) 51 of 56 pages B.N. Products, which shows that the management has manipulated the record by concealing its correct identity from the workmen to deprive them of their statutory benefits. It is pertinent to mention that this witness was not crossexamined by the management and therefore, there is no reason to disbelieve her testimony. It is apparent that the workmen had been fighting for their rights since December 2001 but the management had been denying the rights to them and that is why when the workmen sought assistance of Trade Union seeking execution of 'Charter of Demand', the management illegally terminated their services w.e.f. 16.01.2002. The management has miserably failed to prove on record that workmen have performed their duty with them through any fabricator or contractor.
18. In view of above discussion, in my considered view the authorities relied by Ld. AR for the management are not applicable on the facts and circumstances of the case. Since the management has failed to prove on record that the management was utilizing the services of the workmen under any contract with contractors/fabricators, it cannot be believed that the workmen were working under any such contractor/fabricator. All the workmen have corroborated the statement of claim and have asserted that they were working with the management but the management was not maintaining proper record nor it was providing statutory facilities, as such, the workmen were not required to allege or prove that any contract between the management and contractor/fabricator was sham or camouflage. LIR No. 841/06/02 (Old No. I.D. 353/02) 52 of 56 pages Management has failed to produce the musterroll record despite direction of court and whatever record has been produced appears to be manufactured and therefore, cannot be relied. Therefore, an adverse inference against the management deserves to be drawn and accordingly is being drawn that the management did not produce the record because if it was produced it would have favoured the workmen. It is therefore, held that the workmen were employees of the management and there was relationship of employee and employer between the workmen and the management. The issue is decided accordingly.
ISSUE NO. 2
19. Workman through their respective affidavits reiterated the averments regarding their names, father's name, designation and period of employment and last drawn wages and all of them had completed more than one year service and therefore their services could not have been terminated by the management except by way of punishment inflicted consequent to disciplinary action for any charge of misconduct. Management has denied that it had terminated services of the workmen on the plea that there was no relationship of employer and employee between the management and the workmen. However, issue No. 1 above has been decided in favour of the workmen and against the management and the workmen would not have remained out of the employment if their services were not terminated by the management. It is pertinent to mention that during trial of this case, LIR No. 841/06/02 (Old No. I.D. 353/02) 53 of 56 pages management has settled the dispute with 9 workmen S/Sh. Noor Alam, Suhail Ahmad, Mahesh, Vinay Kumar, Md. Arif, Md. Anees, Pawan, Muneer Ahmad & Mustakeem which clearly shows these workmen were employees of the management and that is why the management has settled the dispute with them and the present workmen were also similarly situated. The reference was received in the court with respect to 183 workmen including those who have settled the dispute with the management amicably. All the workmen have testified that their services were terminated by the management on 16.01.2002. Since no enquiry was conducted by the management nor any charge sheet was issued to the workmen, they are deemed to be in the employment of the management since the date of alleged termination of their services. Therefore, termination of their services without any charge sheet or domestic enquiry is illegal as all of them had completed more than one year service on the date of their alleged termination. Testimony of MW1 and MW2 cannot be believed because MW1 was not in the employment of the management during the relevant period and MW2 was never employed with the management. Therefore, there appears no reason to disbelieve the testimony of above mentioned 60 workmen (57 workmen as mentioned at in para No. 9, page No. 24 to 26 + three workmen namely S/Sh. Surender Kumar S/o Chet Ram Singh, Javed S/o Abdul Hameed & Sandeep S/o Mool Chand who have not signed the statement of claim but have been crossexamined). Management has failed to LIR No. 841/06/02 (Old No. I.D. 353/02) 54 of 56 pages prove that they were gainfully employed since the date of alleged termination of their services. Therefore, they are entitled to reinstatement in service
20. All the workmen have denied that they were gainfully employed but are maintaining their respective families somehow and therefore, grant of 100 % back wages to them will not be justified particularly when the workmen are also responsible for causing delay in disposal of the reference. Moreover, they have not contributed for benefit/business of the management during the period since the date of termination till date and therefore, in my considered view interest of justice shall be met if they are granted back wages @ 50 % of their last drawn wages. (Relied authority reported as 'Vikramaditya Pandey Vs. Industrial Tribunal, Lucknow & Anr., Civil Appeal No. 5360/1997, dated 17.01.2001, 2001 I LLJ SC', wherein Hon'ble Supreme Court has held "having regard to the facts and circumstances of the case and taking note of the fact that order of termination dates back to July 19, 1985, we think it just and appropriate in the interest of justice to grant back wages only to the extent of 50%").
21. Accordingly, management is directed to reinstate the above mentioned 60 workmen (57 workmen as mentioned at in para No. 9, page No. 24 to 26 + three workmen namely S/Sh. Surender Kumar S/o Chet Ram Singh, Javed S/o Abdul Hameed & Sandeep S/o Mool Chand) back in service with continuity of service and to pay them back wages @ 50% of their respective last drawn wages alongwith consequential benefits within 30 days from the LIR No. 841/06/02 (Old No. I.D. 353/02) 55 of 56 pages date of publication of this award failing which management shall have to pay interest @ 12 % per annum till the date of actual payment.
However, none of the workmen in the statement of claim or in his respective affidavit has disclosed the present age and therefore, the order of reinstatement shall apply only to those workmen who have not attained the age of superannuation on the date of passing this award and those workmen who have attained the age of superannuation, shall be entitled only for back wages and consequential benefits as ordered above.
22. The reference is answered accordingly. Copy of award be sent for publication. File be consigned to Record Room.
Announced in the open court on 12th Day of September, 2011.
(T. S. KASHYAP) PRESIDING OFFICER, LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR No. 841/06/02 (Old No. I.D. 353/02) 56 of 56 pages