Delhi District Court
Association Of Upper India vs . Polc-Ii & Anr., 2006 on 16 March, 2011
IN THE COURT OF DR. T. R. NAVAL ADDL. DISTRICT
& SESSIONS JUDGE PRESIDING OFFICER LABOUR
COURT KARKARDOOMA COURTS DELHI
DID NO.218/10(NEW) 307/06(OLD)
Date of Institution :19.09.2006
Date of Arguments :11.01.2011 &
04.02.2011
(Written Arguments
Date of Award :16.03.2011
IN THE MATTER BETWEEN:
Sh. Sunil Kumar
S/o Sh. Mangal Singh
through U.P.L.F.
8/440, Trilokpuri, Delhi-91.
The workman
AND
M/s. Lloyd Insulations (India) Ltd.
2, Kalkaji Indl. Area, Kalkaji,
New Delhi-110019
The management
AWARD
This award will dispose of a statement of claim filed by
workman directly in the Labour Court on 19.09.2006.
DID No.218/10 Page 1 of 22
2. The facts in brief of the workman case are that he
joined the services of the management on 13.03.1997 as a
Store Keeper. The management did not issue him any
appointment letter and subsequently ESI card was issued to
him showing different date of his appointment. Besides, he
was shown as an employee of a fabricated contractor Sh.
D.K.Singh. In the year 1999, he was issued a PF slip by PF
Office. When he protested, the management was annoyed
and terminated his services on 07.04.2006 without giving
him retrenchment compensation or other dues. He made a
complaint to Labour Inspector and also visited the factory of
the management on 09.05.2006 but the management
refused to take him on duty. The Labour Inspector sent his
report. He sent a demand notice dated
17.07.2006(incorrectly mentioned as 2007). Reply of the
management dated 24.07.2006 was received. Another
notice was sent to the management but the management
did not reply nor agreed to pay retrenchment benefits or
other dues to the workman as per law. As the management
terminated his services in violation of labour laws,
therefore, he is entitled to get full back wages and other
benefits. The workman prayed that an award may be
DID No.218/10 Page 2 of 22
passed in his favour and against the management for his
reinstatement in service with full back wages, dearness
allowances, bonus, leaves and other fringe benefits.
3. The management contested its case on the grounds
inter alia, that the there was no relationship of employer
and employee between the parties. The workman Sh. Sunil
Kumar was in fact an employee of Sh. D.K.Singh, contractor.
He was his pay master. There was no privity of contract
between the workman and the management at any point of
time. Therefore, question of termination of his services by
the management does not arise. The management while
denying all other material allegations prayed for dismissal
of statement of claim of the workman.
4. On the pleadings of the parties, following issues were
framed:
1. Whether there existed relationship of employer
and employee between the workman and the
management?
2. Whether services of the workman have been
terminated illegally and unjustifiably?
3. Relief.
5. In support of his case, the workman examined himself
DID No.218/10 Page 3 of 22
as WW1. He filed and proved his affidavit as Ex.WW1/A and
placed reliance on documents Ex. WW1/1 to Ex. WW1/46.
In order to prove its defence, the management
examined Shri Mohan Singh, LDC of the office of ESIC as
MW1. He filed and proved his affidavit as Ex. MW1/A and
relied on documents Ex.MW1/1 and Ex.MW1/2. Sh. Ashwani
Chawla, UDC in the PF Office, has been examined as MW2.
He also filed and proved his affidavit as Ex.MW2/A and
relied on documents Ex.MW2/1 and Ex.MW2/2. Constable
Praveen was examined as MW3. He produced and proved
the copy of D.D. entry in the complaint register as
Ex.MW3/1. Sh. Rajeshwari Singh, Deputy General Manager
of the management was examined as MW4. He filed and
proved his affidavit as Ex.MW4/A. The management also
examined Sh. D.K.Singh, Ex-Contractor as MW5. Sh. Sharad
Burman, Executive of the management was examined as
MW6. He filed and proved his affidavit as Ex.MW6/A and
relied on documents Ex.MW1/1. Ex.MW1/A, Ex.MW1/2,
Ex.MW1/3, Ex.MW1/3A, Ex.MW1/4 to Ex.MW1/8.
6. I have heard the arguments of Authorized
Representatives of the parties and perused the file
including written arguments.
DID No.218/10 Page 4 of 22
7. On perusal of pleadings of the parties, analysing the
evidence and material placed on record and considering
the arguments written as well as oral, I have formed my
opinions on the issue and that are discussed here in below
issue wise:
FINDINGS ON ISSUE NO.1
8. The counsel for the management argued that burden
to prove issue No. 1 is on the workman and workman has to
prove that there was relationship of employer and
employee between the parties. In support of his arguments,
counsel for management relied on a case M/s. Automobile
Association of Upper India vs. POLC-II & Anr., 2006
LLR, 851. It was held therein that:
"Engagement and appointment in service can be
established directly by the existence and production of an
appointment letter, a written agreement or by
circumstancial evidence of incidental and ancillary records
which would be the nature of attendance register, salary
registers, leave records, deposit of provident fund
contribution and employees state insurance contribution
etc. The same can be produced and proved by the workman
or he can call upon and cause the same to be produced and
proved by calling for witnesses who are required to produce
and prove these records. The workman can even make an
appropriate application calling upon the management to
cause such records in respect of his employment to be
DID No.218/10 Page 5 of 22
produced. In these circumstances, if the management then
fails to produce such records, an adverse inference is liable
to be drawn against the management and in favour of the
workman."
9. Counsel for management further relied on a case
Surendarnagar District Panchayat vs. Dahaybhay
Amarsinsh 2006 (108) FLR 193. The Supreme Court held
that:
"More recently, in Rajasthan State Ganganagar S. Mills Ltd.
vs. State Rajasthan and another, Municipal Corporation,
Faridabad v. Siri Niwas and M/s Electricity Board v. Hariram,
this Court has reiterated the principle that burden of proof
lies on the workman to show that he had worked
continuously for 240 days in the preceding one year prior to
his alleged retrenchment and for the workman to adduce an
evidence apart from examining himself to prove the factum
of his being in employment of the employer."
10. My attention goes to a case R.M.Yellatti vs.
Assistant Executive Engineer, 2006 (108) FLR 213 SCC.
It was held by Apex Court that:
"Analysing the above decisions of this Court, it is clear that
the provisions of the Evidence Act in terms do not apply to
the proceedings under section 10 of the Industrial Disputes
Act. However, applying general principles and on reading
the aforestated judgments we find that this Court has
repeatedly taken the view that the burden of proof is on the
claimant to show that he had worked for 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent evidence,
DID No.218/10 Page 6 of 22
both oral and documentary. In cases of termination of
services of daily wages earner, there will be no letter of
appointment or termination. There will also be no receipt or
proof of payment. Thus in most cases, the
workman(claimant) can only call upon the employer
to produce before the Court the nominal muster roll
for the given period, the letter of appointment or
termination, if any, the wages register, the
attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on
facts of each case. The above decisions however make it
clear that mere affidavits or self serving statements made
by the claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the workman to
prove that he had worked for 240 days in a given year. The
above judgments further lay down that mere non-
production of muster rolls per se without any plea of
suppression by the claimant workman will not be the
ground for the Tribunal to draw an adverse inference
against the management. Lastly, the above judgments lay
down the basic principle, namely, that the High Court under
Article 226 of the Constitution will not interfere with the
concurrent findings of fact recorded by the Labour Court
unless they are perverse. This exercise will depend upon
facts of each case."
[Emphasis added]
11. On the basis of principles of law laid down in above
mentioned cases, it is held that initial burden to prove that
there existed relationship of employer and employee
between the parties is on the workman and then burden to
rebut the evidence of the workman, to prove that there was
no relationship of employer and employee between the
DID No.218/10 Page 7 of 22
parties, is on the management.
Employment of the workman with the management
12. On analysing the evidence on record, I came to the
conclusion that workman has discharged his burden to
prove that he had been serving the management for a
period of more than 240 days during the relevant period.
The reasons which support my decision are firstly, that
workman in his affidavit Ex.WW1/A deposed that he was
appointed by the management at the post of 'Storekeeper'
w.e.f. 13.03.1997. Nothing in cross examination, could
come out which could establish that he was not working
with the management since 13.03.1997.
13. Secondly, MW5 Sh. D.K.Singh, contractor in his
statement deposed that Sh. Sunil Kumar worked with him
since 01.08.2002 till 31.03.2006 in the establishment of
M/s. Lloyd Insulation (India) Ltd.
14. Thirdly, in his cross examination, MW5 Sh. D.K.Singh
stated that he did not know whether Sh. Sunil Kumar was
on the payroll of the management prior to becoming his
employee. Thus, the contractor MW5, even failed to rebut
DID No.218/10 Page 8 of 22
the evidence adduced by the workman about his
employment with the management since 1997.
15. Fourthly, MW6 in his cross examination admitted that
Sh. Sunil Kumar had been working with him. He also
admitted that name of Sh. Sunil Kumar was there in
Ex.MW6/W-1 at Sl. No.1. He continued to admit that Sh.
Sunil Kumar used to work under the supervision of Sh.
Rajeshwari Singh. He expressed his ignorance whether Sh.
Sunil Kumar used to work in dispatch department of the
management. He also admitted signatures of Sh. Sunil
Kumar on document Ex.WW1/9 to Ex.WW1/46. Thus, this
witness of the management has also failed to rebut the
evidence of his employment with the management.
Conversely, he supported the case of the workman.
16. Fifthly, on perusal of Ex.WW1/I, I find that it is a PF
receipt containing the name of workman Sh. Suni Kumar as
an employee and name of the management M/s. Lloyd
Insulation (India) Ltd. as employer and it pertains to year
1999-2000. It would be relevant to refer here again the
statement of MW5 wherein he stated that Sh. Sunil Kumar
had been in his employment since 01.08.2002 till
DID No.218/10 Page 9 of 22
31.03.2006. Thus, this document has established that the
workman had been in employment of the management
much prior to that period as this document pertains to the
year 1999-2000.
17. Sixthly, on perusal of document Ex.WW1/II, I find that
it is a labour inspector report. It also bears the signatures of
Sh. V.K.Gupta, on behalf of the management. This contains
that Sh. Sunil Kumar had been working with the
management as a temporary worker from 1999 to
31.07.2002. This document further supported the case of
the workman.
18. Seventhly, on perusal of document Ex.WW1/11 of the
management dated 10.06.2000, I find that name of the
workman appears at Sl.No. 2. I also find name of Sh. Sunil
Kumar on document Ex.WW1/16 dated 03.01.2003 and
Ex.WW1/22 dated 05.03.2003. These documents have
further supported the case of the workman that he had
been in service of the workman during the period
mentioned on these documents.
19. Eighthly, on perusal of Ex.MW1/1, I find that name of
DID No.218/10 Page 10 of 22
Sh. Sunil Kumar appears in the column of name of
employee. His name is also appearing in Ex.WW1/M-2 at
point A.
20. Ninethly, MW6 has also proved document Ex.MW1/8.
On perusal of this document, I find that the management
through Deputy Manager, Sh. V.K.Gupta lodged a report to
the SHO, Kalkaji Police Station regarding theft of invoices
cum delivery challans and gate passes interalia mentioning
therein that Sh. Sunil Kumar might have taken those
documents as he was working that day through contractor
Sh. D.K.Singh.
21. Lastly, the management witness MW4 Sh. Rajeshwari
Singh, in his cross examination also supported the case of
the workman when he stated that he joined the
management approximately in the year 1980 and he did
not remember the exact date of joining of workman. He
also failed to rebut the evidence adduced by the workman.
In view of above reasons, discussion and evidence on
record and particularly discussed here in above, I am of the
view that the workman has discharged his burden to prove
that there was relationship of employer and employee
DID No.218/10 Page 11 of 22
between the parties and he was in the employment of the
management much prior to the date when he has been
shown in the employment of the contractor Sh. D.K.Singh.
22. It has been argued on behalf of the management that
the workman Sh. Sunil Kumar had been working with the
contractor Sh. D.K.Singh in the premises of the
management, therefore, he was an employee of contractor
Sh.. D.K.Singh. Thus, it is the case of the management that
the workman had been serving the management through a
contractor. Therefore, it has to be seen whether the
management was entitled to get services of the labour
including workman through contractor Sh. D.K.Singh during
the relevant time and whether Sh. D.K.Singh, the contractor
was legally permitted to supply labour to the management?
23. It would be appropriate to reproduce the provisions of
Section 7 and 12 of the Contract Labour ( Regulation and
Abolition) Act, 1970. These run as under:
"7.Registration of certain establishments. - (1) Every
principal employer of an establishment to which this Act
applies shall, within such period as the appropriate
Government may, by notification in the Official Gazette, fix
in this behalf with respect to establishments generally or
with respect to any class of them, make an application to
the registering officer in the prescribed manner for
DID No.218/10 Page 12 of 22
registration of the establishment:***"
12. Licensing of contractors. - (1) With effect from such
date as the appropriate Government may, by notification in
the Official Gazette, appoint, no contractor to whom this
Act applies, shall undertake or execute any work through
contract labour except under and in accordance with a
licence issued in that behalf by the licensing officer.***"
24. As per provisions of Section 7 & 12 of the CLRA Act,
the principal employer i.e. management has to prove three
factors for utilising services of the employees through
contractor. Firstly, the management should have a
certificate of registration from the prescribed authority i.e.
labour department and secondly, the contractor
Sh.D.K.Singh should have a license issued by the
competent authority i.e. the labour department and thirdly,
there was an agreement between the parties for supply of
labour to management by contractor, Sh.D.K.Singh. Let us
examine the evidence on record on all these aspects:
Certificate of Registration by the management
25. On scrutinizing the evidence, I find that management
has placed on record a certificate of registration dated
05.03.2002 issued by the Registering Officer, MCD showing
that M/s. Lloyd Insulation (India) Ltd., Industrial Area,
DID No.218/10 Page 13 of 22
Kalkaji, New Delhi-19 was registered under CLRA Act and it
was authorized to take house keeping and management
services from Sh. Dharmender Kumar Singh during the
period from 14.01.2002 to 31.12.2002. No other certificate
has been filed. Thus, this certificate is relevant for the
period from 14.01.2002 till 31.12.2002 and the tenure of
employment of workman is much more than the above
period. It is, therefore, held that the management could not
prove that it was having certificate of registration as
provided u/s 7 of the CLRA Act covering entire period of the
tenure of the services of the workman.
License in favour of contractor Sh. Dharmender
Kumar Singh
26. On perusal of file, I find that license dated 06.03.2002
was placed on judicial file as mark C for the same period i.e.
14.01.2002 to 31.12.2002. This period was also extended
up to 31.12.2004. As mentioned above, the tenure of the
service of the workman Sh. Sunil Kumar was much more
than the above mentioned period. Therefore, it is held that
the management has failed to establish that entire tenure
of service of the workman is covered by this license.
DID No.218/10 Page 14 of 22
Agreement between the management and the
contractor for providing services
27. On scrutinizing of evidence and material placed on
record, I do not find any other agreement except discussed
here in above for providing the services of labour under
CLRA Act by Sh. D.K.Singh to the management. Therefore, it
is held that Sh. D.K.Singh was not providing services of
supply of labour to the management since the year 1997
i.e., during the entire tenure of service of workman i.e.,
from 13.03.1997 to 07.04.2006, i.e., till the date of
termination of his services.
Consequent upon the decision of all the points in
favour of the workman and against the management and in
view of the evidence on record and particularly discussed
here in above, I am of the view that evidence on record has
established that there existed relationship of employer and
employees between the parties. Therefore, this issue is
decided in favour of the workman and against the
management.
FINDINGS ON ISSUE NO. 2
28. It has been held here in above under issue No. 1 that
there existed relationship of employer and employee
DID No.218/10 Page 15 of 22
between the parties. The tenure of services has also been
discussed under the above issue. It has been established
that Sh. Sunil Kumar had been in continuous service of the
management for a period of more than 240 days in one
calendar year preceding the date of termination of his
services by the management.
29. WW1 in his affidavit Ex.WW1/A stated that the
management terminated his services on 07.04.2006. In
cross examination, he clarified that Sh. Rajeshwari Singh
and Sh.V.K.Gupta verbally told him not to come on duty
from the next day. Sh. Rajeshwari Singh was examined by
the management as MW-4. The various documents
including Ex.WW1/III and MW4/X-1 have proved that Sh.
Rajeshwari Singh was also an official of the management.
30. It is not a case of the management that either the
management assigned any reason or issued any notice or
offered or paid retrenchment compensation to the workman
before or at the time of termination of his services. It is also
not a case of the management that the management either
issued any charge sheet or conducted any enquiry against
the workman. Thus, it has been established on record that
DID No.218/10 Page 16 of 22
there has been violation of provisions of Section 25F of the
Act and principles of natural justice in terminating the
services of the workman.
In view of the above reasons, evidence on record and
particularly discussed here in above, issue No. 2 is decided
in favour of the workman and against the management.
RELIEF
31. Counsel for the management relied on a case
Hridayanand vs. G. P. Stores, Allahabad and Others
1996 LLR 433. It was held by Allahabad High Court that:
"Thus, though he was conscious that the question of gainful
employment during the period was relevant for the grant of
back wages, he did not assert that he remained
unemployed and suffered any financial loss because of the
illegal termination of service. Therefore, it is not a fit case
in which this Court should exercise its extraordinary
jurisdiction in ordering payment of back wages or even
remitting the matter back to the Labour Court for a fresh
decision on the validity of the termination and the claim of
backwages."
32. My attention goes to a case Reetu Marbles and
Prabhakant Shukla 2010 (124) FLR 72, wherein it was
held by Hon'ble Supreme Court that:
"In our opinion the High Court was unjustified in awarding
full back wages. We are also of the opinion that the Labour
Court having found the termination to be illegal was
DID No.218/10 Page 17 of 22
unjustified in not granting any back wages at all. Keeping
in view the facts and circumstances of this case we direct
that the respondent shall be paid 50 per cent of the back
wages from the date of termination of service till
reinstatement."
33. My attention also goes to a case M/s P V K Distillery
Ltd. Vs. Mahendra Ram, 1009(2) SCT 369, wherein it was
held that illegal termination does not create a right of
reinstatement with full employment benefits and full back
wages to an employee. It was observed that:
"14. In case of Haryana Urban Development Authority
v. Om Pal, 2007(2) SCT 749, it is stated that, it is now also
well settled that despite a wide discretionary power
conferred upon the Industrial Courts under Section 11A of
the 1947 Act, the relief of reinstatement with full back-
wages should not be granted automatically only because it
would be lawful to do so. Grant of relief would depend on
the fact situation obtaining in each case. It will depend upon
several factors; one of which would be as to whether the
recruitment was effected in terms of the statutory
provisions operating in the filed, if any.***
18. In case of Allahabad Jal Sansthan v. Daya
Shankar Rai, 2005(2) SCT 699, this court has observed: A
law in absolute terms cannot be laid down as to in which
cases, and under what circumstances, full back wages can
be granted or denied. The Labour Court and/or Industrial
Tribunal before which industrial dispute has been raised,
would be entitled to grant the relief having regard to the
facts and circumstances of each case. For the said purpose,
several factors are required to be taken into
consideration.***
19. In case of Madurantakam Coop. Sugar Mills Ltd.
DID No.218/10 Page 18 of 22
vs. S. Vishwanathan, 2005(2) SCT 111, the quantum of
back wages was confined to 50%, stating: It is an
undisputed fact that the workman had since attained age of
superannuation and the question of reinstatement does not
arise. Because of the award, the respondent workman will
be entitled to his retiral benefits like gratuity, etc. and
accepting the statement of the learned Senior Counsel for
the appellant Mills that it is undergoing a financial crisis, on
the facts of this case we think it appropriate that the full
back wages granted by the Labour Court be reduced to 50%
of the back wages.***
21. Giving a realistic approach to the matter and in spite
of all these circumstances we are restricting ourselves to
the question of 50% of the total back wages. Although
services of the respondent have been terminated
unjustifiably and illegally, it itself does not create a right of
reinstatement with full employment benefits and full back
wages.***"
34. My attention also goes to a case Chand Ram vs.
Management of MCD and another, LPA 356/2009;
Manu/DE/2526/09 wherein the Delhi High Court through
Hon'ble Chief Justice observed:
"There cannot be any dispute that the relief of
reinstatement with full back wages is not to be given
automatically and each case has to be considered on its
own merits. The legal position that emerges is that
ordinarily, where a workman, whose services were
terminated illegally, will be entitled to reinstatement but
the court may award compensation in lieu of reinstatement
if the facts are unusual, exceptional or where grant of
compensation would subserve the ends of justice. Each
case will have to be considered on its own merit. However,
in the absence of any cogent or valid reason it would not be
DID No.218/10 Page 19 of 22
proper for the Labour Court/Tribunal to deny the relief of
reinstatement to a workman, whose services have been
illegally terminated. In the instant case, the Labour Court
refused the relief of reinstatement only on the ground that
the period of 7 years had lapsed by the time the case was
disposed of. It is clearly seen from the record that the
proceedings were delayed only on account of the
management. The management, in spite of giving several
opportunities, has not led any evidence in the matter. In
these circumstances, the refusal to grant reinstatement was
not proper. In the result, the appeal is allowed. The award
of the Labour Court is modified to the extent that the
appellant will be entitled to reinstatement in service with
50% back wages.
35. On perusal of statement of claim, I find that although
the workman pleaded that the management terminated his
services illegally and he was entitled for reinstatement in
service with full back wages, yet his statement of claim is
silent about his gainful employment or non employment
since the date of termination of his services. Same is the
position of his affidavit Ex.WW1/A. The cross examination of
WW1 is also silent about the gainful employment. The
management has also failed to adduce evidence on the
gainful employment of the workman since the date of
termination of his services. In these circumstances, it would
be just, fair and proper if instead of full back wages, 50%
back wages are awarded in favour of the workman with
DID No.218/10 Page 20 of 22
reinstatement in service.
ORDER
36. Consequent upon the decision of all the issues in favour of the workman and against the management, case is decided in favour of the workman and against the management and it is held that the management terminated services of the workman illegally and unjustifiably and therefore, the workman is entitled to get reinstatement in service with 50% of his back wages.
37. The appropriate government is advised to direct the management to reinstate the workman Sh. Sunil Kumar in service and to pay him 50% of back wages @ of his laws drawn wages or @ minimum wages prevalent at the relevant time from the date of termination of his services i.e. 07.04.2006, till date of his reinstatement in service. It is further ordered that if back wages are not paid within 30 days from the date of publication of the award, simple interest @ 8% from the date of award till realization will also be payable to the workman by the management.
Award is accordingly passed.
DID No.218/10 Page 21 of 2238. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
39. Copy of award be also sent to Ld. Senior Civil Judge, District South Delhi in compliance of provisions of Sec. 11(10) of the Act as amended by Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010), which runs as under:-
"(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it."
File be consigned to Record Room.
Announced in the Open Court on this 16th day of March, 2011 (DR. T. R. NAVAL) Additional District & Sessions Judge, Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
DID No.218/10 Page 22 of 22