Delhi District Court
Vikas Sharma vs M/S Delhi Tourism And Transportation ... on 7 June, 2024
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 7929/2016
CNR No. DLCT13-005758-2016
In the matter of:
Vikas Sharma,
S/o Sh. Maan Singh
R/o WZ-502, Basaidhara Pur,
New Delhi-110015.
Mobile No.: 9711191263
Through
Hindustan Engineering and General Mazdoor Union (Regd.)
Head Office: D-2/24, Sultanpuri, Delhi.
.....Claimant/Workman
Details of immediate family member of Claimant/Workman:
Name: Smt. Rajani (Wife)
Phone no. 8287861454
Authorized Representative of the Claimant/Workman:
Name: Sh. Kailash Kumar Jonwal,
Mobile no. 9810079644
VERSUS
1. M/s Delhi Tourism & Transportation Development
Corporation,
4E/2 Jhandewalan, New Delhi.
Also at: 18A, DDA SCO Complex,
Defence Colony, New Delhi.
2. M/s Competent Security Service,
1, Shiv Mandir, Jamrud Pur,
Greater Kailash, Part-1, New Delhi.
3. M/s Gaurav Security Service,
A-61, Gali No. 6, West Vinod Nagar,
New Delhi-110093.
.....Managements
LIR No.7929/16
Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA
AGGARWAL Page No. 1 of 30
Digitally signed by
POOJA AGGARWAL
Date: 2024.06.07
04:36:49 +0530
Authorized Representative of the Management no.1:
Name: Sh. Uday Seth
Mobile no.: 9718680536
E mail ID of the management no.1: Not Provided
Authorized Representative of the Management no.2:
Name: Sh. Vinay Kumar Bhasin and Sh. Raman Kumar Thakur
Mobile no. Not Provided
E mail ID of the management no.2: Not Provided
Authorized Representative of the Management no.3:
Name: Sh. Mukesh Sharma
Mobile no. 9868761320
E mail ID of the management no.3: Not Provided
Date of Receipt of Reference : 05.05.2016
Date of Final Arguments : 22.05.2024 & 07.06.2024
Date of Award : 07.06.2024
AWARD
1. A reference was received from the Joint Labour
Commissioner (Central District), Labour Department,
Government of NCT of Delhi vide its order No. F-24(40)/
Lab./CD/2016/246 dated 03.05.2016, under Section 10(1)
(c) and 12(5) of the Industrial Disputes Act, 1947
regarding an industrial dispute between Sh. Vikas Sharma
(hereinafter referred to as 'claimant/workman') and the
managements of M/s Delhi Tourism & Transportation
Development Corporation (hereinafter referred to as
'management no.1'), M/s Competent Security Service
(hereinafter referred to as 'management no.2') and M/s
Gaurav Security Service (hereinafter referred to as
'management no.3') with the following terms of reference:
LIR No.7929/16
Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA
AGGARWAL Page No. 2 of 30
Digitally signed by
POOJA AGGARWAL
Date: 2024.06.07
04:37:16 +0530
"Whether the services of workman Sh. Vikas
Sharma S/o Sh. Man Singh Sharma aged about 35
years have been terminated illegally and/or
unjustifiably by the management; and if so, to what
relief is he entitled and what directions are necessary
in this respect?"
2. After receipt of reference, notice was issued to the
workman after which the claimant/ workman filed the
statement of claim on 02.06.2016.
Facts as per the statement of claim
3. Briefly stated, the claimant/workman has asserted that he was appointed with management no.1 on 30.10.2002 as a helper at the last drawn salary of ₹3,520/- per month for a 12 hour duty at wine shop, Jhandewalan. It has been further asserted that without any transfer letter, the claimant/ workman was transferred to the management no.2 on 01.02.2003 where the management no.2 provided him the salary of ₹3,450/- per month. It has also been asserted that the management no.2 availed the services of the claimant/workman from 01.02.2003 till 14.07.2011, after which the claimant/workman was transferred to management no. 3 on 15.07.2011, without any transfer letter, with his last drawn salary being ₹7,600/-. It has also been asserted that the claimant/workman performed all his duties at one place.
4. It has been further asserted that from the date of appointment, no appointment letter, wages slip, arrears of minimum wages w.e.f 01.10.2013, attendance card, LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 3 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:24 +0530 identity card, casual and earned leaves, bonus, ESI, PF, 4 hours overtime, regularization benefits etc., under the labour laws were provided to the claimant/workman upon which the claimant/workman and other workmen filed a Civil Writ Petition before the Hon'ble Delhi High Court during the pendency of which, the services of the claimant/ workman was terminated on 01.05.2014, illegally, without any written reason, without payment of overtime wages, without any approval in violation of the labour laws i.e. Section 25F, Section 25 G, Section 25(oo), Section 9A and Section 33 (1)(b) of the Industrial Disputes Act, 1947.
5. It has also been asserted that despite the permanent nature of work, the management no.1 was getting the work of helper done through contractors, even though the management no.1 continued to have supervision and control over the claimant/workman. It has also been asserted that the management no.1 did not have any registration to get the work done from the contractor, and that the contractors i.e. management no. 2 and 3 did not have any license. It has also been asserted that the agreement between the management no.1 and management no.2 and 3 was sham and camouflage.
6. It has been further asserted that the management changed the contractors from time to time to being a break in the services of the claimant/workman to deprive him of his legal benefits. It has also been asserted that no seniority list was maintained by the management, and juniors were LIR No.7929/16 POOJA Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. AGGARWAL Page No. 4 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:31 +0530 appointed in place of the claimant/workman, in violation of the Industrial Disputes Act.
7. It has also been asserted that the demand letter sent by the claimant / workman to the managements on 24.07.2015 by registered AD seeking reinstatement with back wages and other legal benefits was not replied to by the managements, the managements did not appear before the Assistant Labour Commissioner and even the conciliation proceedings failed, after which the reference was sent to the Court.
8. It has also been asserted that the services of the claimant / workman were terminated without any opportunity of being heard, without any inquiry and without any notice. It has been further asserted that he is unemployed since the termination of his services and he is without any source of income, hence the present claim seeking reinstatement with managements with continuity of service with full back wages with 18% interest.
Facts as per the written statement of management no.1
9. In their written statement, the management no.1 has denied the existence of the relationship of employer-employee between them and the claimant/workman asserting that the claimant/workman has himself asserted to be the employee of the management no.3 and his services were terminated by the management no.3.
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POOJA AGGARWAL Page No. 5 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:40 +0530
10.It has been further asserted that the Writ Petition (Civil) No. 2236/14 filed before the Hon'ble Delhi High Court titled 'Vikas Sharma & Ors. v/s Government of NCT of Delhi & Ors.' seeking directions for regularization of services of the claimant/woekman and permanent post was dismissed by the Hon'ble Delhi High Court vide order dated 09.09.2014 on the grounds that the claimants had not been able to establish that they were in the service of the DTTDC and that the documents placed on record by the claimant revealed that they had been engaged by a private agency by the name of Gaurav Security Services, and that it was the said agency, which was paying the claimant/workman his monthly emoluments.
11.It has been further asserted that the present case was covered under Section 2(oo) (bb) of the Industrial Disputes Act and was beyond the scope of Section 25F, Section 25G, and Section 25H of the Industrial Disputes Act.
12.On merits, it has been asserted that the claimant/workman was appointed as a helper on 30.10.2002 at Jhandewalan Country Liquor Vend by the management no.1 on a contractual basis and his services were availed initially for a period of 2 months, from 30.10.2002 to 29.12.2002, which were extended for further period of one month w.e.f 01.01.2003 to 31.01.2003 i.e. for a total period of three months with two days' break in service in December 2002. It has been further asserted that the appointment letter itself was categorical that the appointment was on contract LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 6 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:46 +0530 basis and that the claimant/workman would not claim any regular permanent employment in the corporation. It has been denied that the claimant/workman was transferred at the behest of management no. 1 to management no.2 or from management no. 2 to management no.3. It has also been asserted that the claimant/workman was not an employee of the management no.1 at any point of time after 31.01.2003 when his services came to an end with the efflux of time as mentioned in the appointment letter/ memorandum.
13.It has been further asserted that in accordance with the recommendation of the 6th Pay Commission, the management no.1 had the power to outsource the recruitment in Multitasking Staff Grade (MTS) and it was the prerogative of management no.1 to directly engage the employees or sub-delegate its work through the contractor. It has been further asserted that the management did not interfere or direct the management no.2 to engage a particular employee. It has also been asserted that the management had no role in directly recruiting the claimant/ workman and thus there was no mandate upon the management to maintain a seniority list.
14.All the remaining assertions made in the statement of claim including as to the workman/ claimant having been terminated by the management no.1 during the pendency of the Writ Petition before the Hon'ble Delhi High Court have been denied on merits.
LIR No.7929/16Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 7 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:53 +0530 Facts as per Rejoinder to the written statement of management no.1
15.In the rejoinder, the claimant/workman denied the averments of the written statement and reiterated the contents of his statement of claim. It has been asserted that the management had complete control and supervision over the contractor who worked as per the directions of the management and that the management no. 1 appointed the contractor only for the purposes of division of salary. It has been further asserted that despite regular/permanent work being available at the establishment of the management, the management was taking work through contractor, without any registration or license of the contractor in violation of the Contract Labour (Regulation and Abolition) Act. It has been further asserted that in the Writ Petition no. 2236/2014, in the order dated 09.09.2014 passed by the Hon'ble Delhi High Court, liberty had been granted to the petitioners to seek the remedies against the private contractor and also against the DTTDC as may be permissible. It has been reiterated that no domestic enquiry was conducted by the management nor any reason was informed to the claimant/workman.
Facts as per the reply of management no.2
16.In their reply, the management no.2 has asserted that the claimant/workman had joined the management no.2 on probation on 01.02.2003 and after July 2011, he started absenting from his duties without any reason or intimation LIR No.7929/16 POOJA Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. AGGARWAL Page No. 8 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:37:58 +0530 upon which he was asked to take his full and final settlement and he received the full and final claim and also withdrew his EPF. It has been further asserted that the management no.2 never terminated the services of the claimant/ workman. It has also been asserted that the management no.2 completed its work with the management no.1 on 14.07.2011, and that the claimant/ workman left his job with the management no.2 as per his choice after taking full and final amount and withdrawing his EPF contribution. All the remaining averments made in the statement of claim have been denied on merits.
Facts as per Rejoinder to the reply of management no.2.
17.In the rejoinder, the claimant/workman denied the averments of the reply and reiterated the contents of his statement of claim. It has been asserted that when the claimant/workman was appointed with the managements, the managements had obtained his signatures by fraud on blank papers, vouchers with receipt, printed performa etc, which were being misused by them. It has been further asserted that the claimant/workman had never given any resignation letter or received in full and final payment. It has been further asserted that when the tender of management no.2 was not renewed, his signatures were obtained under pressure on the PF form which were deposited by the officials of the management at the PF office. It has been reiterated that the claimant/workman did not absent himself but was terminated and that his service record was good.
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POOJA AGGARWAL Page No. 9 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:38:05 +0530
18.It has been further asserted that despite regular/permanent work being available at the establishment of the management, the management was taking work through contractor, without any registration or license of the contractor in violation of the Contract Labour (Regulation and Abolition) Act. It has also been asserted that in the Writ Petition no. 2236/2014, in the order dated 09.09.2014 passed by the Hon'ble Delhi High Court, liberty had been granted to the petitioners to seek the remedies against the private contractor and also against the DTTDC as may be permissible. It has been reiterated that no domestic enquiry was conducted against the claimant/workman nor any reason was informed to him.
Facts as per the written statement of management no.3
19.In their written statement, the management no.3 has asserted that the claimant/workman started working with them since 15.07.2011 till 16.04.2014 on terms and conditions specified in the memorandum dated 20.11.2002 and 29.01.2003 on contract basis. It has been further asserted that the claimant/workman had been employed on specific terms and conditions that his contract period would be for two months which could be terminated before the expiry of such period without any reason.
20.It has been further asserted that there was a contract between management no.1 and 3 from 15.07.2011 till 15.01.2015, and it was agreed by the management no.3 LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 10 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:38:10 +0530 that they will keep the employees of management no.1 and that at the time of the execution of the contract dated 15.7.2011, the claimant/ workman was working under the management no.2. It has been further asserted that on 16.04.2014, the claimant/ workman voluntarily resigned due to family problems which was accepted by the management on 16.04.2014 after which the management no.3 cleared the accounts of the claimant/workman and paid him a sum of ₹90,000/- in cash vide receipt dated 07.05.2014, which included seven months salary from April 2014 to July 2015 @ ₹ 7,600/- and ₹14,000/- towards bonus, overtime, etc, which amount was paid in the presence of one Mr. Pappu Kumar. It has been further asserted that the tender of the management no.3 had already expired on 15.01.2015. It has been further asserted that the claimant/workman was never a regular employee of the management no.3 and was never terminated by them. All the remaining of averments made in the statement of claim have been denied on merits.
Facts as per Rejoinder to the written statement of management no.3
21.In the rejoinder, the claimant/workman has denied the averments of the written statement and reiterated the contents of his statement of claim. He has also reiterated that he was working with the management no.1 and 2, even prior to the contract of management no.3, and that the contractor had been appointed only for division of the salary. It has been further asserted that at the time of the contract with the managements, blank ESI/PF forms, LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 11 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:38:17 +0530 vouchers with receipts, printed proforma, etc. were got signed from the claimant/workman which were being misused.
22.It has been further asserted that the claimant/workman never gave any resignation nor received any full and final payment. It has also been asserted that the management had with held the salary of seven months, and had stated that they will not release the same until he signed the resignation letter and full and final payment, due to which the claimant/workman signed on the blank papers, vouchers with receipts, printed proformas etc. under compulsion, but he never received any settlement of his dues. It has been further asserted that the services of the claimant/ workman was terminated by the management on 01.05.2014. On merits, similar grounds were raised as were raised in the rejoinder to the written statement/ reply of the management no.1 and 2.
Issues
23.The following issues were then framed by the Ld. Predecessor on 10.10.2017:
1. Whether there is any relationship of employer and employee between the workman and management no.1? OPW
2. Whether the claimant has left the job as per his choice after taking full and final amount and also withdraw his EPF contributions? OPM-2
3. Whether the claim of the workman is not maintainable? OPM 3
4. As per terms of reference.LIR No.7929/16
Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 12 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:38:23 +0530
5. Relief Workman Evidence
24.To prove his case, the workman / claimant tendered his evidence by way of affidavit i.e. Ex. WW1/A on similar lines as his statement of claim. He also relied upon the following documents :
Sl no. Description of Document Exhibit/Mark
1. Demand Letter dated 24.07.2015 Ex. WW1/1
2. Postal Receipts Ex.WW1/2 to Ex. WW1/5
3. Copy of Office order dated Also exhibited 18.07.2013. as Ex. WW1/5 and Ex WW1/10 4. AD card Ex. WW1/6
5. Copy of statement of claim filed Ex. WW1/7 before the Conciliation Officer.
6. Copy of attendance record Ex. WW1/8
7. Letter written by the workman to Ex. WW1/9 the General Manager of management no. 1
8. Copy of undated letter written by Ex. WW1/11 workman to Sh. Puneet Goyal, Managing Director, Transport Department, Delhi.
9. Copy of reply of RTI dated Ex. WW1/12 14.10.2013 to Mr Ram Kumar
10. Copy of letter dated 19.06.2014 Ex. WW1/13 by Vikas to Mr. Sanjay Kumar Srivastava
11. Letter dated 26.05.2014 by Vikas Ex. WW1/14 to Lt. Governor Sh. Najeeb Jung
12. Copy of tracking reports Mark A, Mark B and Mark C
13. Copy of order dated 30.10.2002 Mark D LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. Digitally signed by POOJA POOJA AGGARWAL Page No. 13 of 30 AGGARWAL Date:
2024.06.07 04:38:29 +0530 issued by Chief Manager Liquor, (Colly.) to Shop incharge alongwith absentee statements
14. Copy of salary slips issued by Mark E management no. 1
15. Letter written by the workmen to Mark F the Managing Director Ms. Reena Ray of management no. 1 for making them permanent with noting of Mr Ashok Gupta.
16. Letter dated 13.05.2011 by Mr. Mark G Sandeep Mishra to management no. 1 regarding regularization of service.
17. Letter dated 27.04.2011 issued Mark H by Deputy Secretary, Public Grievances, Chief Minister's Office to the management no. 1.
18. Letter written to Arvind Mark I Kejriwal, Chief Minister for regularization of service.
19. Letter written by Sh S.K. Oberoi Mark J
20. Copy of letter dated 04.09.2013 Mark K by Sh. Amarjeet Singh, Chief Manager (Personnel)/PIO to Mr Ram Kumar.
21. Copy of Notice dated 14.06.2013 Mark L issued by General Manager and First Appellate Authority.
22. Copy of letter dated 30.01.2014 Mark M by Secretary (Services) regarding engagement of Contractual/Temporary/Casual Employees.
23. Copy of communication dated Mark N 04.02.2014 issued by Sh Amarjeet Singh, Chief Manager (Personnel) to all Divisional Heads.LIR No.7929/16
Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. Digitally signed by POOJA POOJA AGGARWAL Page No. 14 of 30 AGGARWAL Date:
2024.06.07 04:38:35 +0530
24. Copy of status of grievance Mark O
25. Copy of letter dated 03.01.2014 Mark P written to Arvind Kejriwal, Chief Minister for regularization of service.
26. Copy of e-mails Mark Q 27 Letter dated 24.05.2012 sent by Mark R Mr. Amrish Singh Gautam to the Chairman, Management no. 1.
28. Copy of order dated 09.09.2014 Mark S passed by Hon'ble Delhi High Court.
WW1 claimant/workman was duly cross-examined on behalf of the management no.1 during which a memorandum dated 29.01.2003 i.e. Ex. WW1/M-1/1 was put to him.
25.Vide order dated 03.02.2023, the right of the management no. 2 and 3 to cross-examine the WW-1 claimant/workman was closed by the Ld. Predecessor.
Management Evidence
26.Only management no. 1 led its evidence and examined only one witness i.e. MW-1 Mr. Kulvinder Singh who tendered his evidence by way of affidavit i.e. Ex. MW1/A and also relied upon the following documents:
Sl no. Description of Document Exhibit/Mark
1. Order dated 09.09.2014 passed Ex.MW1/1 by Hon'ble Delhi High Court.
2. Memorandum dated 20.11.2002 Ex.MW1/2 issued by management no. 1.
3. Memorandum dated 29.01.2003 Ex.MW1/3 LIR No.7929/16 Digitally Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. signed by POOJA POOJA AGGARWAL Page No. 15 of 30 AGGARWAL Date:
2024.06.07 04:38:41 +0530 (already Ex WW/M-1/1)
4. Circular dated 30.01.2003 Ex.MW1/4 MW1 was duly cross-examined on behalf of the claimant/ workman.
27.Final arguments were then advanced on behalf of the workman as well as the management no.1 by their respective Authorized Representatives.
28.The final arguments as advanced have been carefully considered along with the evidence on record and after careful consideration of the same, issue wise findings are as under:
Issue No.1:Whether there is any relationship of employer and employee between the workman and management no.1?
29.The onus to prove this issue was on the claimant/workman as it a settled proposition of law that the burden to prove a fact is on the one who asserts the same and it is the claimant/ workman who has asserted the existence of such relationship.
30.Strength for this interpretation is drawn from the judgment of the Hon'ble Delhi High Court in Babu Ram v. Govt. (NCT of Delhi), 2018 SCC OnLine Del 7243, where it has been observed that:
" It is well settled principle of law that the person, LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors.
POOJA AGGARWAL Page No. 16 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:38:49 +0530 who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this regard, the Hon'ble Supreme Court in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N., (2004) 3 SCC 514 has approved the judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Para 48 to 50 of the said judgment reads as under:--
"48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, (1973 Lab IC 398) the Kerala High Court held:
The burden of proof being on the workmen to establish the employer- employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.
49. In Swapan Das Gupta v. The First Labour Court of W.B. (1976 Lab IC 202(Cal)) it has been held:
Where as person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person."
(Emphasis supplied)
31.In the present case, WW1 claimant/workman has testified that he had been appointed with the management no.1 on 30.10.2002 as a helper. He has also testified that he was transferred to the management no.2 on 01.02.2003 where he worked till 14.07.2011 and then he was transferred to the management no.3 on 15.07.2011. He has further LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors.
POOJA AGGARWAL Page No. 17 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:00 +0530 testified that his services were terminated by the managements on 01.05.2014.
32.However, the claimant/workman has not filed even a single document to prove either his nature of initial appointment nor to prove that he continued to be an employee of the management no.1 after 01.02.2003 till 01.05.2014 and there is no admission by the management no.1, in its pleadings as to the claimant/ workman being its employee even after 31.01.2003 i.e. after his transfer to the management no.2. Rather, the claimant/workman has himself relied upon the document i.e. Mark J wherein he has been described to be a contractual worker.
33.On the other hand, the management no.1 has relied upon the memorandum i.e. Ex. MW1/2 dated 20.11.2002, as per which the claimant/ workman had been appointed with the management no.1 on contractual basis w.e.f. 30.10.2002 for a period of two months and on Ex MW1/3 i.e. the memorandum dated 29.01.2003 whereby the appointment of the claimant/ workman on contract basis was extended w.e.f. 01.01.2003 till 31.01.2003. They have also relied upon the memorandum dated 30.01.2003 i.e. Ex MW1/4 as per which no contract appointments were to be made by the management no.1 on the liquor vends beyond 31.01.2003.
34.The documents i.e. Ex. MW1/2 to Ex. MW1/4 have not been challenged by the claimant/workman during the LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 18 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:08 +0530 entire cross-examination of MW1, nor is it his stand that they are false documents. Rather, WW1 has admitted in his cross-examination that he had received the memorandum Ex MW1/3 (Ex.WW1/M-1/1) as per which his services had been extended only till 31.01.2003 and he was to stand relieved w.e.f. 31.01.2003 A/N.
35.Thus, with the workman/ claimant not having even controverted the said documents as per which his appointment with the management no.1 was only for a fixed period of time i.e. for a period of two months w.e.f. 30.10.2002 which was extended w.e.f. 01.01.2003 till 31.01.2003, and not beyond the same, the factum of his employment with the management no.1 having ended with the efflux of time on 31.01.2003 as per the terms of appointment, stands proved.
36.It has been argued on behalf of the claimant/workman that as the management no.1 continued to have supervision and control over the claimant/ workman, even though they were getting the work done through contractors, it proved that the claimant/workman was an employee of the management no.1. In support of this argument, reference has also been made to the cross-examination of MW1 Sh. Kulvinder Singh, wherein he has admitted that the claimant/ workman was working under the supervision and control of the Manager of the liquor vend.
37.In respect of this argument, it is pertinent to note here that LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 19 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:16 +0530 it is a settled proposition of law that mere supervision does not prove the existence of a relationship of employer- employee between the parties as other factors are also to be looked into before such conclusion can be arrived at.
38.In Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407, the Hon'ble Apex Court has enumerated the factors to be considered to establish the existence of the employer- employee relationship as under:
"Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer- employee relationship would include, inter alia, (i) who appoints the workers; (ii) who pays the salary/ remuneration; (iii) who has the authority to dismiss;
(iv) who can take disciplinary action; (v) whether there is continuity of service; and (vi) extent of control and supervision, i.e. whether there exists complete control and supervision."
(Emphasis supplied)
39.In Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635, it has been observed held by the Hon'ble Supreme Court that:
"10. ...... Two of the well-recognized tests to find out whether the contract labour are the direct employees of the principal employer are (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that first respondent is a direct employee of the appellant.
11. On a careful consideration, we are of the view that the Industrial Court committed a serious error in arriving at those findings. In regard to the first test as to who pays the salary, it placed the onus wrongly LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 20 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:24 +0530 upon the appellant. It is for the employee to aver and prove that he was paid salary directly by the principal employer and not the contractor. The first respondent did not discharge this onus. Even in regard to second test, the employee did not establish that he was working under the direct control and supervision of the principal employer. The Industrial Court misconstrued the meaning of the terms `control and supervision' and held that as the officers of appellant were giving some instructions to the first respondent working as a guard, he was deemed to be working under the control and supervision of the appellant.
12. The expression `control and supervision' in the context of contract labour was explained by this court in International Airport Authority of India v. International Air Cargo Workers Union [2009 (13) SCC 374] thus:
"38....If the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/ allotted/ sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/ allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/ sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors.POOJA Page No. 21 of 30
AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:32 +0530 control. The primary control is with the contractor."
13. Therefore we are of the view that the Industrial Court ought to have held that first respondent was not a direct employee of the appellant, and rejected the application of the first respondent."
(Emphasis supplied)
40.Hence, it is seen that two of the well-recognized tests to find out whether the contract labour are the direct employees of the principal employer are whether the principal employer pays the salary instead of the contractor; and whether the principal employer controls and supervises the work of the employee.
41.In the present case, there is not even a single assertion/ averment by the claimant/workman that he was being paid salary by the management no.1 after 31.01.2003 nor any document has been produced by him to prove that the management no.1 paid his salary till the date of termination of his services. Rather, in his own cross- examination, WW1 has admitted that he had been informed that their salary would be drawn from Management no.2 which indicates that the pay master was no longer the management no.1, but management no.2.
42.It is also noted that though in Ex. WW1/A, the claimant/ workman had testified to the effect that since the date of his appointment (as opposed to the date of his transfer), he had been asking the management inter-alia, for wages slip etc. which were not given, it implies that he was not given LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 22 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:39 +0530 any wages slip by the management no.1 since his initial appointment with them on 01.05.2002, yet the claimant/ workman has himself relied upon copy of salary slips issued by management no. 1 i.e. Mark E. However, even from the said salary slips, none has been pointed out as pertaining to the period after 31.01.2003 till 2014, so as to prove the factum of payment of salary of claimant/ workman by the management no.1 and thus do not assist the claimant/workman to prove the existence of employer- employee relationship.
43.It is also pertinent to note here that even in his application under Section 11(3)(b) of the Industrial Disputes Act, the claimant/ workman had asked for the record only for the period of 2002 to 2003 from the management no.1 perhaps being cognizant of the fact that no further wages record of the claimant/workman would be available with the management no.1 since he was not an employee of the management no.1 subsequent to 31.01.2003 and thus, even the non-production of wages record of 2002-2011 by the MW1 during his cross-examination does not assist the claimant/workman in any manner. Hence, the factum of payment of salary to the claimant/ workman by the management no.1 remains unproved.
44.In respect of the supervision and control over the claimant/ workman, it is duly noted that though WW1 claimant/ workman has testified that there was control and supervision of the management no.1 over him, he has led LIR No.7929/16 POOJA Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. AGGARWAL Page No. 23 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:46 +0530 no further evidence to prove the extent of such control and supervision nor he has elucidated the nature and extent of such control. It is also noted that even though MW1 has admitted in his cross-examination that the claimant/ workman was working under the supervision and control of the Manager of the liquor vend, in the absence of the nature and extent of supervision having been brought on record, the admission of MW1 does not suffice to prove the factum of the claimant/ workman being an employee of the management no.1 as as in view of the legal proposition laid down in Bengal Nagpur Cotton Mills v. Bharat Lal, (Supra), it was for the claimant/workman to prove that the extent thereof.
45.In the absence of the such evidence having been led by the claimant/workman, it cannot be presumed that the control and supervision of the management no.1 over the claimant/ workman was complete and thus, the factum of the claimant/workman being under complete control and supervision of the management no.1 remains unproved.
46.It has also been argued on behalf of the claimant/workman during final arguments that as the MW1 had admitted that the claimant/workman was working continuously from 2002 to 2014, it proved the existence of relationship of employer-employee between the management no.1 and the claimant/ workman. However, there is no merit in the argument as raised since mere admission as to the claimant/ workman working during the aforesaid period LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 24 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:52 +0530 does not prove that he was working as an employee of the management no.1 and not of the contractors i.e. management no.2 and 3.
47.Thus, considering that the initial onus was on the claimant/ workman to prove his employment with the management no.1 till 2014 and not for the management to disprove the same, the mere admission of MW1 as to the claimant/ workman working from 2002 to 2014, does not assist the claimant/workman in discharge of his burden in proving the existence of employer-employee relationship between the management no.1 and the claimant/workman.
48.Another argument was advanced on behalf of the claimant/workman as to the agreement/ contract between the managements being sham and bogus as MW1 had himself admitted that no letter had been given by the management regarding appointing the workman through contractor and also because MW1 has also admitted that no agreement between the management no.1 and 2 and 3 has been filed in the court.
49.In respect of these arguments, it is noted that the claimant / workman has failed to demonstrate as to what would have been the occasion for the management no.1 to issue appointment letter regarding appointing the workman through contractor as the same would be the prerogative of the contractors and not of the management no.1.
LIR No.7929/16Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 25 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:39:58 +0530
50.Further, in respect of the admission of MW1 as to no agreement between the management no.1 and 2 and 3 having been filed in the court also does not assist the claimant/ workman as the initial onus was upon the claimant/ workman to prove his continued employment with the management no.1 and not for the management no.1 to disprove the same but the claimant/workman has failed to discharge its onus.
51.In view of the discussion as above, it is held that the claimant/ workman has failed to discharge his burden and prove the existence of relationship of employee-employer between him and the management no.1 after 31.01.2003. The issue no. 1 is accordingly decided against the claimant/ workman and in favour of the management no.1.
Issue no. 2: Whether the claimant has left the job as per his choice after taking full and final amount and also withdraw his EPF contributions?
and Issue no.3: Whether the claim of the workman is not maintainable?
52.Both the issues are being taken up together for the sake of convenience. While the onus to prove issue no.2 was on the management no. 2, the onus to prove the issue no.3 was on the management no.3 as they had asserted the same in their respective pleadings.
53.However, no evidence has been led by either the management no.2 or 3 to discharge the respective onus LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 26 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:40:04 +0530 cast upon them as for reasons best known to them, the management no.2 and 3 stopped appearing since 2019. No evidence has been led by the management no.2 and 3 nor they examined any witness to prove their respective assertions i.e. as to the claimant/workman having left the job as per his choice after taking full and final amount and also withdrawing his EPF contributions, and as to the claim of the claimant/workman not being maintainable.
54.In the absence of any evidence having been so led and there being no admission by the claimant/workman in his rejoinders, it is held that the management no.2 and 3 have failed to discharge their respective onus, and issue no 2 is decided against the management no.2 and in favour of the claimant/workman while the issue no. 3 is decided against the management no.3 and in favour of the claimant/workman.
Issue no.4: As per terms of reference
55.As already noted, the reference as received is in respect of determining whether the services of the claimant/ workman have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect.
56.That being so, it was for the claimant/ workman to prove the factum of his termination by the managements. In respect thereof, WW1 claimant/workman has inter-alia LIR No.7929/16 Vikas Sharma vs M/s Delhi Tourism & Transportation Development Corporation & Ors. POOJA AGGARWAL Page No. 27 of 30 Digitally signed by POOJA AGGARWAL Date: 2024.06.07 04:40:12 +0530 testified in Ex.WW1/A that he had been appointed with the management no.1 on 30.10.2002, then transferred to the management no.2 on 01.02.2003, and then transferred to the management no.3 on 15.07.2011, where his last drawn salary was ₹7,600/-. He has further testified that during the pendency of a Writ Petition no. 2236/2014, the managements had terminated his services out of vengeance on 01.05.2014, without any written reason and without any overtime payment.
57.It is pertinent to note here that except self serving averments in Ex. WW1/A and Ex. WW1/1, no evidence has been led by the claimant/workman to prove the factum of his termination on 01.05.2014 and the testimony of WW1 claimant/workman is also ambiguous as to which of the managements had terminated his services on 01.05.2014.
58.For reasons best known to the claimant/workman, he took no steps to seek production of any records from the management no.1, 2 or 3 to show that he was attending the work with the managements till 01.05.2014 nor he has stated on oath as to which of the managements had terminated his services.
59.It needs to be borne in mind that it was for the claimant/ workman to plead and prove the factum of termination by management no.1, 2 or 3 and not for the managements to disprove or for the courts to presume.
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60.Thus, the only evidence on record qua the termination of the services of the claimant/workman is the mere self serving testimony of the claimant/ workman as to his services having been terminated on 01.05.2014, which does not constitute sufficient evidence, even on a scale of preponderance of probabilities, to prove the factum of termination of the services by the managements when read with, in conjunction with the fact that the claimant/ workman has not even specifically stated as to which of the managements had terminated his services and qua which of the managements he seeks reinstatement, and without there being any corroborative evidence at least in respect of the last working day of the claimant/ workman.
61.In the circumstances, with the factum of termination of services of the claimant/workman by the management remaining unproved, the question of the same being illegal and/or unjustifiable does not arise. This issue is accordingly decided against the claimant/workman and in favour of the managements.
Relief
62.In view of the above discussion and findings on issue no. 1 to 4, it is held that the claimant/ workman has failed to prove that his services have been terminated illegally and/ or unjustifiably by the management. Hence, he is not entitled to get any relief. Reference is answered accordingly.
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63.Copy of Award be uploaded on the website of RADC and another copy be sent to the concerned department through proper channels as per rules.
64.File be consigned to record room after necessary compliance. POOJA AGGARWAL Announced in the Open Court Digitally signed by today on 07th June 2024 POOJA AGGARWAL Date: 2024.06.07 04:40:34 +0530 (Pooja Aggarwal) Presiding Officer Labour Court-01, Rouse Avenue District Courts, New Delhi.
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