Delhi District Court
C/O. All India General Mazdoor Trade ... vs M/S. Shahi Export Pvt. Ltd on 28 July, 2016
IN THE COURT OF MS. RAJ RANI MITTRA
ADDITIONAL DISTRICT & SESSIONS JUDGE/
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
LIR No. 4514/16 (OLD ID NO. 649/14)
IN THE MATTER BETWEEN:
Sh. Dilip Kumar,
R/o. H. No. A18, Khijrbad,
Near New Friends colony,
New Delhi.
C/o. All India General Mazdoor Trade Union (Regd.),
170 Bal Mukund Khan, Giri Nagar,
Okhla Phase II, New Delhi : 20.
........Workman
Versus
1. M/s. Shahi Export Pvt. Ltd.,
F 88, Okhla Phase I,
New Delhi : 20.
2. M/s. MR Stitchwell (Contractor),
F 88, Okhla Phase I,
New Delhi : 20.
.........Managements
Date of Institution : 18.12.2012
Date of Arguments : 25.07.2016
Date of Order
: 28.07.2016
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
A W A R D
1. The Secretary (Labour), Government of NCT of Delhi
vide its order No. F.24(20)/Lab./SD/2012/4158 dated: 01.05.2012,
referred an industrial dispute of worker with the above mentioned
managements to the Labour Court with the following terms of
reference:
Whether the services of Smt. Poonam W/o.
Sh. Gopal Singh & 08 Ors. (As per annexure
"A") have been terminated illegally and/or
unjustifiably by the management; if yes, to
what relief is she entitled and what directions
are necessary in this respect?"
2 Since all the workmen have been filed their claims
separately therefore, my Ld. Predecessor vide order dated
18.12.2012 order that claim of all the workmen be registered
separately. Hence, present case pertains to workman Sh. Deepak
Jayaswal.
3 Brief facts as stated in the statement of claim are that
the workman appointed with the management no. 1 (herein after
called as M1) through Management no. 2(hereinafter caled as M2)
on the post of "Checker" since 26.06.2008 and his last drawn
salary was Rs. 7826/ per month. The Management did not provide
the legal faciliteis such as salaryincrease, travel allowance, house
allowance, leave book, bonus card, appointment letter and
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
attendance card etc. He was demanding the said legal facilities due
to which mangement got annoyed and terminated him from
service on 27.09.2011 in violation of Section 25F of the ID Act
and his earned wages from 01.09.2011 to 26.09.2011 wre also
withheld by the Management. He sent demand notice dated
27.09.2011 to the Management through union claiming
reinstatement and all other benefits but Management did not reply.
Thereafter, he filed a complaint before the Assistant Labour
Commissioner and Labour Inspector was sent at the premises of
Management but despite direction of Labour Inspector also
workman was not reinstated in duty. Thereafter, he raised an
industrial dispute before the labour department/ conciliation
officer but management did not apear before the labour
department. Hence, conciliation failed, therefore, case was
referred to this Court.
4 Notice of reference was sent to both managements
and AR of both managements appeared.After few dates AR of M1
has stopped appearing in the court and did not file WS on behalf
of M1 & was proceeded exparte vide order dated 20.12.2014.
5 The M2 in its Written Statement has alleged that
Managment was a manpower contractor of M1 for one year and
said contract was renewed time to time and said contract was
terminated on 23.09.2011, hence service of workman was
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
automatically terminated on 23.09.2011. Further it is alleged that
workman has not worked for 2240 days in proceding year of his
termination. M2 has denied that workman was terminated from
service as he demanded legal facilities.
8. Rejoinder was filed by the workman to the WS of
both the Managements in which he denied the contents of WS of
both the Management and reitreated the contents of statement of
claim as true and correct.
9. From the pleadings of both parties, vide order dated
22.09.2014 the following issues are framed
1. Whether there exist relationship of
employeremployee between the
management no.2 and workman? OPM
2. Whether the workman has not
worked for 240 days continuously in a
year with the management no.1 if so,
what effect?
3. Whether the service of the workman
have been terminated illegally and/or
unjustifiably by the management.
4. Relief.
10 In order to prove his case, workman has examined
himself as WW1 and led his evidence through an affidavit
Ex.WW1/A and relied upon documents Ex.WW1/1 is copy of
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
statement of claim, Ex.WW1/2 is copy of labour inspector's report,
Ex.WW1/3 and 1/ 4 are postal receipts, Ex.WW1/5 is demand
notice, Ex.WW1/6 is A.D. Card and Mark A is ESI card.
11. On the other hand, management no. 1 has not led any
evidence to rebut the contention of workman. Though the
management no. 2 has examined Sh. Bijender Singh, its
compliance manager as MW1 who filed his evidence through
affidavit Ex. MW1/A.
12 Arguments were heard from Sh. Anil Rajput, Ld.
ARW and Sh. Ajeet Singh, Ld. AR for management. My issue
wise findings are as under :
ISSUE No. 1
Whether there exist relationship of
employeremployee between the
management no.2 and workman?
13. The Management no. 1 in its WS has alleged that
workman was not the employee of M1 but he was employee of
M2. On the other hand workman has alleged in his Statement of
claim that he was employed in Management no. 1 through
Management no. 2. He worked throughout in M1 was only
deployed through M2.
14. In order to prove his case Workman has examined
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
only himself as WW1 led his evidence through affidavit Ex.
WW1/A in which he stated that he was appointed as Checker on
26.06.2008 on the last drawn wages of Rs. 7826/ per month. No
legal facilities was provided to him. He relied upon document
Ex.WW1/1 is copy of statement of claim, Ex.WW1/2 is copy of
labour inspector's report, Ex.WW1/3 and 1/ 4 are postal receipts,
Ex.WW1/5 is demand notice, Ex.WW1/6 is A.D. Card and Mark
A is ESI card.
15. I agree with the contention of Ld. ARM that onus was
upon the workman to prove that he was the employee of M1. In
case M/s. Shree Ji Sarees through its Proprietor Sh. Pankaj Jain
versus Ved Prakash Sharma W.P. © No. 7267/2012 dated
21.05.2015 has been held that :
"10. It is no longer res integra that the
burden of proving the employer
employee relationship primarily rests
upon the person who asserts its
existence. In a situation where a person
asserts to be an employee of the
management which the management
denies, the duty primarily rests on the
person so asserting to give positive
evidence in his favour and discharge his
initial burden. Once such a person has
given positive evidence in his favour,
only then, the burden would shift on the
management to give evidence to counter
such claims. This is because it is always
easier to prove positive fact than a
negative.
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
The Hon‟ble Supreme Court in
"Workmen of Nilgiri Coop. Mkt.
Society Ltd. v. State of Tamil Nadu",
AIR 2004 SC 1639 held as under:
"47. It is a wellsettled principle
of law that the person who sets up a
plea of existence of relationship of
employer and employee, the burden
would be upon him. 48. In N.C. John Vs.
Secretary Thodupuzha Taluk Shop and
Commercial Establishment Workers'
Union and Others [1973 Lab. I.C. 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
employeremployee relationship.
" In Swapan Das Gupta and Others Vs.
The First Labour Court of West Bengal
and Others [1975 Lab. I.C. 202] it has
been held: "Where a 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."
The question whether the relationship
between the parties is one of the
employer and employee is a pure
question of fact and ordinarily the High
Court while exercising its power of
judicial review shall not interfere
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
therewith unless the finding is
manifestly or obviously erroneous or
perverse."
Kanpur Electricity Supply Co.
12. "In
Ltd. v. Shamim Mirza", (2009) 1 SCC
20, the Hon‟ble Supreme Court held as
under:
"20. It is trite that the burden
to prove that a claimant was in the
employment of a particular
management, primarily lies on the
person who claims to be so but the
degree of proof, so required,
varies from case to case. It is
neither feasible nor advisable to
lay down an abstract rule to
determine the employeremployee
relationship. It is essentially a
question of fact to be determined
by having regard to the
cumulative effect of the entire
material placed before the
adjudicatory forum by the
claimant and the management."
(emphasis supplied)
16. Now reverting back to the case, workman in the para1
of his statement of claim has alleged that he was employed in
Management no. 1 through Management no. 2 but no document
has been placed by him that he was given appointed in M1 as
employee. He further admitted that he did not have any card issed
by M1 but has card issued by M2. He also admitted that he used to
get salary through pay slip on which name of M2 was written thus
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
it proved that he was paid salary by M2. He has himself filed ESI
Card Ex. WW1/2 which proved that same was issued by M2. The
wage document and ESI is best proof of employment as held in
Automobiule Association of Upper India V/s. PO Labour Court
II and anothers 2006 LLR 551. The relevant portion is reproduced
as under :
"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 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."
17 Hence, the workman has failed to discharge his onus
that he was empoyee of M1. Therefore, considering the testimony
of workman and ESI Card proved by workman himself I hold that
workman was employee of Management no. 2 and not
management no. 1.
18. Another argument of workmen's AR is that contract
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
between M1 and its contractor M2 is sham and camouflage
therefore even if workmen were employee of M2 they should be
treated as employee of Management no. 1 being principal
employer. I agree with the contention of Learned AR for
Management that this Court has no jurisdiction to go into the issue
as to whether the contract entered into the M1 & M2 is sham or
camuflage, since no such dispute was raised by the claimants, no
referece was made by the appropriate government in that respect,
and; there were no pleadings to that effect by the Claimants. In
Ashok Kumar & Ors. V/s. The State & Anr. In W.P. (C) Nos.
943842/2004 decided on 20.12.2006. MANU/DE/9807/2006. In
this case, the learned Single Judge observed that no dispute had
been raised about the contract being sham or a camouflage. The
Claim of the workmen was that they were direct employees of the
management and did not claim that they were employees of the
contractor. The court observed :
"it is now settled law that where the workman
claim that the contract between principle
employer and contractor was sham and
camouflage they have to raise an industrial
dispute to that effect and it is industrial
adjudicator who after going through the evidence
and the terms conditions of the contract and other
circumstanceshas to decide whether the contract
between principal employer and the contractor
was sham and camouflage."
In para 7 of the Judgement, this court further
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
observed as follows :
It is obvious that the workmen in this case did not
raise correct dispute and did not approach the
appropriate government with the contentions that
the contract was sham and camouflage or that the
contract labour system should be abolished. They
have referred a dispute that they were the
employees of the management and were not being
regularized. This claim was found false. The
labour court had no alternative but to dismiss the
claim. It is settled law that the labur
court/tribunals cannot travel beyound the terms
of reference. If no reference had been made to the
labour court for determining whether the contract
was sham and camouflage, the labour court could
not have entered into this issue and decideded
whether the contract was sham and camouflage."
19 Further in BSNL v/s. Attar Singh & Ors. W.P.C
3150/2007. Date of decision 20.03.2013 decided by Hon'ble Justice
Sh. Vipin Sanghi while relying upon Ashok Kumar (Supra) has
held that:
28. Since no reference was made by the
appropriate government on the issue of the
validity of the contracts between the petitioner
and the security agencies, the CGIT had no
jurisdiction to examine the same. The decision
in Ashok Kumar (supra) is clearly applicable
in the facts of the present case.
The approach of the CGIT, in the light of the
aforesaid discussion, in declaring that the
contracts between the petitioner and the
security agencies were a sham or a
camouflage is completely erroneous. The said
issue did not arise for consideration of the
CGIT. The non filing of documents or any
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
evidence in this respect by the petitioner was
clearly on account of the fact that the said
issue was not even raised by the respondents.
On the contrary, they had admitted the position, and it was their own case that they had been engaged through contractors.
29. It is also interesting to note that on the one hand, the CGIT has held the contracts to be sham and camouflage, while on the other hand, while answering the reference it has been held that the action of the petitioner management in terminating/disengaging the services of the workman "without complying with the provisions of ID Act, 1947 and non conferring of temporary status on them in accordance with the DOPTS Scheme of September 1993 and thereby non regularizing their services in terms of provisions of CL (R&A) Act, 1970, employed through Security Contractors viz. M/s Luxman Security Agency, M/s Keshav Security Services, M/s Anuradha Security Services is neither just nor fair nor legal. The management is directed to reinstate all the above named workmen applicants except S/Shri Mahesh (ID No.53/2004), Mukesh (ID No.56/2004) and Shri Amar Singh (ID No.90/2004) because these three workmen have not filed their affidavits along with 50% back wages w.e.f. 01.09.2002 and make payment of the entire arrears within two months from the date of publication of the award". (Emphasis supplied)
30. From the aforesaid, it would be seen that the CGIT has itself observed that these workmen were employed through security contractors, namely M/s. Luxman Security Agency, M/s Keshav Security Services, M/s. Anuradha Security Services. The question of LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 invoking the provisions of CLRA Act would arise only if the services of the workmen were taken through labour contractors. The aforesaid declaration by the CGIT has embedded in it the declaration that the respondent workmen had been engaged through contractors. Therefore, there is no merit in the submission of the respondents that their case was that they had been directly engaged by the petitioner management or that they had, in fact, been engaged directly by the petitioner management. It was neither their case that they had been directly engaged by the petitioner management, nor was it so established by them on the record. Pertinently, they had not produced any letters of appointment issued by the petitioner appointing them as security guards. As aforesaid, the petitioner is a government corporation and it is absolutely unacceptable and unbelievable that persons to such vital positions which involve trust and faith, would be appointed casually without even issuance of appointment letters.
31. A perusal of the impugned award shows that the same primarily proceeds on the basis that the contracts between the petitioner and the security agencies are sham and camouflage. As aforesaid, this finding has been rendered without jurisdiction. The CGIT was also swayed by the fact that the respondent workmen were able to establish that they had been working at the premises of the petitioner for a couple of years atleast. That, by itself, could not have lead to the conclusion that the relationship of employer employee existed between the parties. This is for the reason that the Indian Kanoon http://indiankanoon.org/doc/150108611/9B.S. LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 N.L. vs Attar Singh & Ors. on 20 March, 2013 petitioner does not even dispute the fact that the respondent workmen were serving the petitioner at its facilities. However, the case of the petitioner is that they were serving through contractors, i.e. security agencies. Rendering of such contract labour would not make the respondents the workmen of the petitioner.
20 In Gopal & others V/s. BSNL LPA 408/2013 dated 03.07.2014, 213 (2014) DLT 325 (DB) also Hon'ble division bench has again reiterated that labour court has no jurisdiction to decide whether contract is sham and camouflager if said dispute is not referred by the Government.
21 Even otherwise onus was upon workmen to prove that contract between M1 and contractors was sham and camouflager but workmen in their statement of claim have not pleaded that contract between M1 and contractor M2 is sham and comouflage. In the statement of claim only it is mentioned that workman was deloyed in M1 through M2.
22 The contention of Ld. AR for workman that workman was working under the supervision and control of M1 & M2 officia thereore contat between M1 & M2 is sham & camaflaudge is also not acceptable. In Workman of Nilgiri Coop. Marketing Society Ltd. V/s. State of Tamilnadu 2004LLR351 it is observed that relevant factor for to test control and supervision are :
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is appointing authority; (b) who is the pay master; (c ) who can dismiss;
(d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject.
In International Airport Authority vs. International Air Cargo Workers Union & Another 2009 (13) SCC 374 further criteria has been provided regarding control and supervision. It is held that :
The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like:
who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 arise. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage.
For example, 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. 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 control. The primary control is with the contractor.
23 Same view has again been reiterarted in General LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 Manager (OSD) Bangal Nagpur Cotton Mills, Rajnandgaon vs. Bharat Lal & Anr. 2011 LLR 113. In this case Supreme court while setting aside order of High court to treat workman as employee of Principal Employer held in Para 9 as under :
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 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. 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:
"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 LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 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. 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 control. The primary control is with the contractor."
24 Now applying the aforementioned tests, it is evident that workman was employed by contractor M2. He has admitted that he was issued wage slip by M2. Merely workman was only working as per direction of the official of M1 it cannot be said that he was working under the supervision and control of M1 official. Thus considering all the facts and circumstances, I hold that claimants have failed to prove that workman was working under the supervision and control of official of M1 or that contract between M1 and M2 was sham and camouflage. LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
25. Hence, in view of aforesaid facts and circumstances, I held that workman has failed to prove that workman was employee of M1. Issue no. 1 is decided accordingly against the workman and in favour of the M1.
ISSUE NO. 2.
Whether the workman has not worked for 240 days continuously in a year with the management no.1 if so, what effect?
26 Again onus was upon the workman to prove t4hat he worked for 240 days in a year. In R.M.Yellatti vs. Assistant Executive Engineer, 2006 (108) SCC the Hon'ble Supreme Court observed as follows :
.....However, applying general principles and on reading the (aforesaid) judgements 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. Thus burden is discharged only upon the workman standing in the witness box. This burden is discharged upon the workman abusing cogent evidence, both oral and documentary. In cases of termination of service earners, there will be no letter of appointment or termination. There will be also be no receipt or proof of payment. Thus in most cases the workman can only call upon the employer to produce before the court the nominal muster roll for the LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 given period, the letter of appointment tor termination if any the wage register the attendance register etc. drawing of adverse inference ultimately would depend thereafter on facts of each case."
26.. Applying the principle laid down in the above case by this court, the evidence produced by the appellant has has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily wages basis so it is obvious as this court pointed out in the above case that he would have difficult in having access to all the official documents, muster roll etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service.
27 The following principle laid down by the Supreme Court in Range Forest Officer Vs. S.T. Hadimani, 2002 (3) SCC 25, wherein while dealing with the question of proof of employment observed as under: "3........In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination.
It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
Therefore, the petitioner's contention that his statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."
28 As per testimony of workman he had joined the M1 from 26.6.2008 and worked till 27.09.2011. No suggestion has been given to workman denying the said facts hence his testimony remained unrebutted. No evidence has been led by the management, therefore, I held that workman has been able to prove that he continuously worked more than 240 days in a year prior to his termination. Hence, issue no. 2 is decided in favour of the workman.
ISSUE NO. 3.
Whether the service of the workman have been terminated illegally and/or unjustifiably by the management.
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 29 The workman has deposed in his testimony that since he was demanding legal facilities therefore, management got annoyed and terminated him from service. He has not specified which of two managements has terminated him from service. As mentioned above since he was not employee of M1 hence no question of his termination by M1 arise. As far as termination by M2 is concerned M2 in WS has alleged that since its contract with M1 was not renewed after 23.9.2011 therefore, workman service was automatically terminated. But to prove the said fact no evidence has been led by the managements. More ever non renewal of contract is no ground for automatic termination as M2 can deployed him somewhere else. The M2 has not alleged that it was closed after non renewal of contract by M1. Thus, in these circumstances, I hold that workman was illegally terminated by the management no. 2. Hence, issue no. 3 is decided accordingly.
RELIEF.
30. Ld. AR for the owrkman has argued that since workman has been terminated illegally therefore, he is entitled for reinstatement with full back wages.
31. I have considered the arguments and gone through the record. It is settled law that reinstatement and back wages are not automatic and it depend upon the facts and circumstances of each LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 case. My this view is also strengthen by judgement of Ashok Kumar Sharma vs. Oberoi Flight Services"AIR 2010 SUPREME COURT 502 where in Supreme Court while rely upon various judgements of Supreme Court held compensation in lieu of reinstatement or back wages would be appropriate. The relevant para of judgment is reproduced as below: "8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute2(2008 AIR SCW 2256) this Court considered the matter thus :
"2. JT 2008 (3) SC622.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] :
(2007 AIR SCW 7305).
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs.
1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The aforereferred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
3. JT 2009 (9) SCC 396."7.
It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
In case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010ILLJ245 (Del) High Court of Delhi, it was held that:
"illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
32 In W.P. (C) 780/2001 titled as N.K. Joshi versus M/S LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 Modern Bakeries (India) Ltd. & Anrs. dt. 31.07.2014 Hon,ble Justice Vibhu Bhakru has uphold the grant of compensation in a case where termination of workman has held to be illegal. The relevant para 10 is reproduced as below:
"10. It is a trite law that the relief of reinstatement with back wages would not necessarily follow even if the dismissal of an employee from his services is held to be illegal. The relief of reinstatement and back wages is not an automatic remedy in case termination of an employee is turned down as illegal. In certain cases, compensation instead of reinstatement would be an appropriate relief. The exact nature of relief and remedy would depend upon the facts and circumstances of the case. There are various factors that need to be considered in evaluating the relief to be granted to a workman, including length of service of employee, manner and method of appointment, permanent or temporary employment, the period since dismissal of the services etc. The Supreme Court in the case of Jagbir Singh v. Haryana State Agriculture Mktg. Board:
(2009) 15 SCC 327 examined catena of decisions and held as under: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow.
However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
Xxxx xxxx xxxx xxxx xxxx While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances."
33 Now reverting back to the case though as per testimony of workman he was working since 26.06.2008 and in ESI card mark A date of joining of workman is 28.6.2008. There is no ground to disbelieve the workman's testimony and ESI card. He worked with the management till 27.9.2011 i.e. almost 3 years and three months. Hence he worked for a short span. From evidence led by workman it is evident that relationship of workman and management is not smooth hence, it would not be in the interest of industrial piece to direct reinstatement. Hence, considering the short span of service and the aforesaid other facts, it would not be appropriate to reinstate him and it would be appropriate to grant lump sum compensation.
34 Now in the light of afroesaid circumstances, in my LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28 view it would be appropriate to grant lump sum compensation of Rs. 1,50,000/ (Rs. One Lac and Fifty thousand) only as retrenchment compensation in lieu of reinstatement, back wages and other other consequential benefits. The management no. 2 is directed to pay the aforesaid compensation and if the management no. 2 fails to make the payment then management no. 1 would be liable to pay the said amount being principal employer. The managements would be liable to pay the said amount within 30 days from the date of publication of award, failing which they shall be liable to pay interest @ 8% per annum on the awarded amount in case. The reference is answered accordingly. File be consigned to record room.
35. Copy of the award be sent to the Secretary (Labour) Government of National Capital Territory of Delhi for necessary instruction. The award be also sent to server (www.delhicourts.nic.in).
Announce in the court
On this 28th July, 2016
(RAJ RANI MITTRA)
Presiding Officer, Labour
Court Karkardooma Courts,
Delhi.
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28
LIR NO. 4514/16 Dilip Kumar vs. M/s. Shahi Export Pvt. Ltd. Page No. 30 out of 28