Delhi District Court
The vs Sh. Sunil Manchanda on 17 February, 2014
IN THE COURT OF SH. SANJEEV KUMAR
PRESIDING OFFICE R LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID NO. 29/11 (Old DID No.127/10)
IN THE MATTER OF
Sh. Mohinder Pandey @ Mahender Pandey
S/o. Late Sh. Ram Kishore Pandey
R/o.A68, B/1, Mahavir Vihar,
Near Durga Mandir, Kanjhhawala,
New Delhi81.
......... The Workman
Versus
1. Sh. Sunil Manchanda
Proprietor of Deep Genaral Store,
At Shop No.5212A,
Gandhi Market, Sadar Bazar,
Delhi06
2. Mr. Anil Manchanda,
S/o Late Sh. V.S. Manchanda
Proprietor of Sheel Sagar Garment,
Accessories at A178 (basement)
Shivalik Malviya Nagar,
New Delhi17
3. Navneet Gupta
Proprietor of Sai Garment Accessories,
at 1114/11, Govindpuri, Delhi ...... The Management
DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 1 out of 20
Date of Institution :05.05.2010
Date of Award :17.02.2014
A W A R D
1. Vide this award, I shall decide direct claim petition
filed by the workman Mohinder Pandey @ Mahender Pandey S/o.
Late Ram Kishore Pandey against the management of M/s. Sunil
Manchand Etc. for his illegal termination.
2. The brief facts of the case as stated in the claim
petition are that the workman was appointed by the management
no.1 on 01.10.98 as "Sales Executive' on the monthly salary of Rs.
3500/ and he was also assured that he would paid bonus, gratuity,
PF etc. The management no.1 (herein after called M1) transferred
to the workman management no.2 (herein after called M2) on
10.03.03 and workman joined the duty in the office of management
no.2 on the monthly salary of Rs. 5500/ and he also assured to pay
allowances as ESI, bonus, gratuity, PF etc. The workman worked
there till 31.08.09 and thereafter, management no.2 stated to the
workman that management no2 is running its partnership firm and
sent to the workman for the job in management no.3 (herein after
DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 2 out of 20
called M3) on 31.08.09 and thereafter he joined M3 on the
monthly salary of Rs.8800/ and on 07.10.09, the management no.
3 in collusion with M1 & M2 terminated the services of
workman without giving any notice or advance salary and when the
workman tried to join the duty, the management did not allow the
workman to enter their offices. The workman has claimed Rs.
98,480/ with all other benefits.
3. Notice were issued to all three managements. In the
written statement the management no.1 has taken the preliminary
objection that petition is liable to dismissed for misjoinder of
parties as there is no privity of contract between the management
no.1 and the workman was never employed by management no.1
in any capacity therefor management no1 is not a necessary party.
Further it is stated by management no.1 that there is no control or
connection with the management no.3.
4. On merit all the contents of claim petition were denied
as in correct. It is denied that workman was appointed by the
management no.1 on 01.10.09 on the monthly salary of Rs.3500/
or that management no.1 transferred the workman to management
no.2 on 10.01.03. Further it is stated that management no.1 has no
DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 3 out of 20
knowledge whether the workman has joined with management no.2
for the monthly salary of Rs.5500/ or management no.2
transferred the workman. The management no.1 stated to the
workman that it is running a partnership firm and accordingly sent
the workman for his job at management no.3 on 31.08.09 and
thereafter the workman joined the duty with management no.3 at
monthly salary of Rs.8800/ per month.
5. The management no.2 in its written statement taken
the preliminary objection that the claimant has worked with
management no.2 from May, 2003 and continuously performed his
duty till 31.07.09. The claimant after collecting his legal dues
joined the respondent no.3, therefore, there is no relationship
between the management no.1 and claimant/workman. Further it is stated that there is no relationships of management no.2 and management no.1 and management no.3. On merit all the contents of the claim petition were denied as incorrect. The management no. 2 denied for want of knowledge that the workman was appointed on 01.10.88 as sale executive marketing on monthly salary of Rs. 3500/. It is further stated that claimant joined the management no. 2 in May, 2003 and worked till July 09. Further it is denied that DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 4 out of 20 management no.2 had ever assured the claimant that he will be paid bonus, ESI, PF Gratuity as same were not applicable to management no.2 because management no.2 had less than 10 employees which were required for applicability of ESI & EPF, bonus, and gratuity. Further it is also denied that management no.2 is running a partnership firm and sent the workman for job with management no.3 on 1.08.09. It is stated that the claimant has made a concocted story of partnership with management no.3 where as management no.2 has no association/partnership with management no.3. Both managements are the separate entity.
6. In its written statement management no.3 has taken preliminary objection that claimant was appointed on August, 2009 and thereafter worked till 07.10.09 and on 07.10.09 had committed a grave misconduct of misbehaving with the proprietor of management no.3. He abused to him and therefore, his service were discharged by management no.3.
7. On merits, it is stated that claimant worked with the management no.3 for two months and seven days and was paid Rs. 8,000/ per month. Further it is stated that management no.3 is separate entitity having separate constitution and no linkage DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 5 out of 20 whatsoever. Hence, the claim is liable to be dismissed.
8. Three respective rejoinder to the written statements filed by filed by workman in which he almost denied all the contents of the written statements and asserted that the contents of the claim petition are true and correct.
9. After completion of the pleading of both parties, vide order dated 09.08.11, the following issues were framed :
1. Whether there exists any relationship between the management and the workman? OPM
2. Whether the workman is entitled for the relief as prayed?OPW
6. In order to prove his claim, workman examined himself in evidence through an affidavit Ex.WW1/A and also relied upon documents Ex.WW1/B to Ex.WW1/F and markA to D. The witness was cross examined at length by Ld.ARs for all three managements.
7. In order to prove its claim management no.1 examined MW1 Sunil Manchanda (witness for management no.1) by way of DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 6 out of 20 affidavit Ex.MW1/A. The witness was cross examined by AR for workman.
8. The management no.2 examined MW2 Anil Manchanda (witness for management no.2) by way of affidavit Ex.MW1/A. He was also cross examined by AR for workman.
9. In order to prove its claim management no.3 examined MW3 Naveen Gupta (witness for management no.3) by way of affidavit Ex.MW1/A. The witness was cross examined by AR for workman.
10. After completion of evidence of both parties, I have heard the arguments of Ld. ARs for both parties and gone through the material on record.
ISSUE WISE FINDINGS ARE AS UNDER ISSUE NO.2 REGARDING RELATIONSHIP Whether there exists any relationship between the management and the workman?
11. The management no.1 has totally denied its relationship with workman in its written statement as well as in the DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 7 out of 20 evidence of MW1 Sunil Manchanda. On the other hand, management no.2 in its written statement as well as evidence of Anil Manchanda, has admitted that the workman was its employee from 02.05.2003 but the workman has left the job after taken his full & final settlement on 31.07.09 and joined the management no.
3.as such there is no employer employee relationship where as management no.3 in its W.S. as well as evidence of Naveen Gupta has stated that the workman joined with management no.3 in August, 2009 but since he has misbehaved with the proprietor of management no.3, therefore, his service was terminated on 07.10.09 due to his misconduct and since he did not completed 240 days, therefore he is not a workman.
12. Since the workman is claiming from all three management is one and same entity and his term of employment be treated to be continue from 1.10.98 till 07.10.09, therefore, the onus is upon the workman that all three management were having any connection with each other and they were working in collusion with each other and workman was transferred by management no.1 to management no.2 and management no.3 and their exist the employer employee relationship and that he completed 240 days is DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 8 out of 20 upon the workman is upon the workman. Recently in case Mohd. Zulfikar Ali vs. (Wakf) Hamdard Labor Thr. Its Head Hr, P & A Hamdard Building ILR(2013)IV Delhi 2801 Hon,ble Division Bench dealt entire law on employeremployee relationship as under: "12. So far as the reliance on the pronouncement of the Supreme Court in (2010) 1 SCC 47 Director, Fisheries Terminal DepartmentVs. Bhikubhai Meghajibhai Chavda is concerned, it was held that the appellant had taken the plea that the work was not of seasonal nature and that it was in evidence that the workman had completed 240 days of service in the preceding year. Contradictory documentary evidence was produced by the appellant. Incomplete muster roll was produced in respect of the direction issued by the labour court. In these circumstance, the Industrial Award in favour of the workman was upheld by the High Court which order was challenged before the Supreme Court. In para 14, the court has noted that the evidence produced by the appellant (employer)had not been consistent. This coupled with the fact that the respondent, as a daily wager, would have difficulty in having access to the official documents, muster roll etc. in connection with his service weighed with the court, and it was for these reasons held that upon his coming forwardand deposing, the burden of proof shifted the appellant (employer) to proof that he did not complete 240 days of service in the DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 9 out of 20 requisite period to constitute continuous service.
13.We may note the observations of the Supreme Court in (2006)1 SCC 106 R.M. Yellatti Vs. Assistant Executive Engineer. In this case the workman had also produced a certificate issued by the Executive Engineer to the effect that he had worked from 22nd November, 1988 to 20th June, 1994. The Supreme Court noted that though the workman had been cross examined on behalf of the Management, there was no material to disbelieve the certificate and, therefore, the Labour Court had arrived at the conclusion in favour of the workman. The Award was sustained by the Supreme Court of India. It was in these circumstances that the Supreme Court observed as follows: "...........However, applying general principles and on reading the (aforesaid) 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, both oral and documentary. In cases of termination of services of daily waged earners, 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 (the 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 wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 10 out of 20 thereafter on facts of each case."
"17. Applying the principles laid down in the above case by this Court, the evidence produced by the appellant 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 wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, 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.................."
14. So far as the pronouncement in 2008 III LLJ 737 (Bom) SubDivisional Engineer, Irrigation Project Yavatmal Vs. Sarang Marotrao Gurnule is concerned, the appellant claimed to have been working as a daily wager w.e.f. 1st May, 1985 till 2nd February, 1991. The workman had claimed that he had worked for more than 240 days in a year and that the respondents were giving technical breaks in his service so as to debar him from the benefit of regularization. The services of the workman were terminated by an order dated 3rd February, 1991 in respect of which he raised an industrial tribunal which was referred to the Labour Court and an award came to be passed in favour of the workman. The Labour Court had made an award concluding that the DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 11 out of 20 workman had worked for more than 240 days of the year as required under Section 25B of the Industrial Disputes Act, 1947 and his termination was in violation of Section 25F of the Industrial Disputes Act and, therefore, illegal. The order of the Labour Tribunal was upheld by the Division Bench of the Bombay Court.
15. It is trite that judgments of courts are to be construed with reference to the facts which they decide. [Ref.: (2008) 1 SCC 494 Sarva Shramik Sanghatana (KV) v. State of Maharashtra (Paras 14 to 17)]. This judgment of the Bombay High Court has been rendered in the facts and circumstances of the case and would not impact the adjudication in the present case.
16.The statement by the present petitioner that he was an employee for 240 days in a year has to be tested against the requirement of law. the impugned Award dated 28th March, 2013, the Industrial Tribunal has made a detailed consideration and referred to binding judicial precedents of the Supreme Court of India. On the issue of burden of proof, we find that reference has been made to a judgment reported at 2006 (6) A.D. Delhi 180 M/s. Automobile Association of Upper India Vs. PO Labour CourtII & Anr. The impugned Award has heavily relied on the pronouncement of the Supreme Court reported at (2005) 5 SCC 100 Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors. wherein it had been held that: "it is only if the initial burden of proof, which was on the workman, was discharged to some extent that a finding can be returned in respect of the defence DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 12 out of 20 of the management. Furthermore, the plea having been set up by the workman, the initial burden of proof was on the workman to show that he had been employed by the petitioner in the claimed capacity on the stated terms. The circumstances in which the court may draw an adverse inference against the management were also succinctly set down.
17. We may also notice the following principles laid down by the Supreme Court in (2002) 3 SCC 25 Range Forest Officer Vs. S.T. Hadimani: "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 his claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filling 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 the 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."Hence from DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 13 out of 20 the aforesaid judgements it become amply clear that onus is on the claimant/ workman to prove employeremployee relationship and that he remained in continuous service for 240 days in preceding year prior to his termination....."
13. Now reverting back to the case, the workman has examined only himself as WW1 and in his evidence by way of affidavit Ex.WW1/A he almost stated the same facts as stated above in the claim petition. He also relied upon documents Ex.WW1/B to F and markA to D. The document Ex.WW1/B i.e. demand notice dt.27.02.09, WW1/C original receipt of UPC, Ex.WW1/D the original AD. Card, Ex.WW1/F the photocopy of cheque does not pertain to management no1. Since no management has disputed the legal demand notice that the same was not received by them was sent by workman but sending of demand notice did not prove relationship. The document MarkC the photocopy of appointment letter of the M1. In his cross examination by AR for management no.1 in reply to question why he did not filed the appointment letter the workman has stated that during proceeding upon asking of management no.1 filed the same as he felt he should file the said document and he also stated he did not file the same also because of shifting of his house and because DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 14 out of 20 certain documents had got misplaced. He further deposed that the original was not provided to him by management no.1. He denied that suggestion that markD has been created and forged by him after the receipt of the reply filed by management no.1. In he stated that he was transferred from M1 toM2 and that time M1 was not present. In reply to Question that alleged transfer from management no.1 to management no.2 took place admittedly on 10.03.03 why he has not initiated any action for the last about 8 years he replied that Anil Manchanda /M2 gave him several assurances time and again that he will do everything for him and therefore, he was not worried. He admitted that he was terminated by M3. In reply to question what is corelation/collusion between M1& M3 he replied that he do not blame M1 Sunil Manchanda and have no grievances against him and stated his grievances is against Anil Manchanda. As he was working with Anil Manchanda/M2 and his friends which were based at Lajpat Nagar under the the name of Mahindra Enterprises and therefore, there was no involvement of M1/Sunil Manchanda.
14. Thus from the cross examination of claimant and documents producing by him it is evident that the workman was DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 15 out of 20 not appointed by proprietor of M1 i.e. Sunil Manchanda but as per his own admission there is no involvement of management no.1 in his appointment with management no.1. As far as document mark D relied by claimant to prove that he was employee of management no.1. The MW1 in his cross examination has categorically stated the same as forged. Said document is photocopy, the explanation given by claimant in his cross examination that original was not provided to him does not appear to be much satisfactory because if management can provide the photocopy earlier then also can provide the original, moreover, workman in his claim petition has never stated that he was ever provided any appointment letter by management no.1. Hence, I held that workman has failed to prove that appointment letter issued by management no.1. Even otherwise also claimant has admitted that he was transferred on 10.03.03 from management no. 1 and MW1 Sunil Manchanda was not present when he was transferred. The management no.1 is a proprietorship concerned. No other person except the proprietor is competent to appoint or transfer any employee unless the authority has been given in this regard by proprietor. No such authority has been placed on record DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 16 out of 20 by the claimant. Hence it cannot be ruled out that even if claimant had worked with management no.1. He has voluntarily left management no.1 to join management no.2 as he was getting higher salary and proprietor of M2 was previously known to him as he was previously working with proprietor management no. The workman has failed to produce any evidence which establish link between the management no.1and management no.2 and management no.3. He has himself stated in the claim petition, memo of parties that managements are proprietorship concerned nor the partnership. They are separate legal entity and therefore, even if the management no.1 has employed him, his employement came to an end with management no.1 when he leave the job and joined with management no.2. Hence, I held that workman has failed to prove that he was employee of management no.1 on the day of filing of the claim.
15. As far as M2 is concerned, MW2 in his testimony has admitted that claimant was his employee till 31.7.99. Where as claimant himself stated that he worked with M2 tillin his cross examination by AR for management no.2 claimant stated in his evidence that he worked with management no.2 till 31.07.09 and DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 17 out of 20 thereafter, joined the management no.3 and he denied the suggestion that there is no relationship between the management no.1, management no.2 and management no.3. It is admitted fact that the workman has left the M2 and joined management no.3, though the case of management no.2 is that the workman has left the management no.2 and joined management no.3 he has worked with management no.2 till 31.07.09 whereas case of the workman is that he worked till 31.08.09 and he was terminated but whatever fact is that the workman has joined management no.3. He is claiming that he has been transferred to management no.3 but no such document of transfer has been placed on record. Since, in his claim petition claimant himself stated that the M2 and M3 are proprietorship concerned. Therefore, being two different proprietorship they are two different legal entity and one person cannot be transferred to another separate entity. Even the workman has failed to lead any evidence that proprietor of M2 and M3 are known to each are sister concern. Two different proprietorship firm may not be sister concern. Hence workman has failed to proved that M2 and M3 are sister concern or that he was transferred from M2 to M3. Admittedly workman was taking salary of Rs 5500/ DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 18 out of 20 P.M., when he was working with M2, where as he joined with M3 at a salary of Rs 8800/P.M. hence, it cannot be ruled out that workman left the M2 and join M3 for higher salary.
16. As far as M3 is concerned MW3 has admitted in evidence that claimant was his employee and joined the service in the month of August 2009. Claimant has admitted in his evidence that he joined on 31.08.2009 and on 07.10.09 there was a quarrel with Naveen Kumar Gupta proprietor and he had called the PCR and that quarrel had been settled later on. The copy of settlement deed is Ex.WW1/M3/1. The documents Ex.WW1/M3/2 & WW1/M3/3 bear his signature which are salary vouchers. He deposed that his services was terminated on 07.10.09. The MW3 has also not denied the said fact. Hence he was terminated on 07.10.2009. Therefore he worked with M3 for two month only hence not completed 240 days in preceding year prior to his termination.
17. In view of aforesaid discussion, I held that there is no employeremployee relationship of claimant either with M1 or M2 at the time of his termination as all the three managements were separate legal entity and there is no connection among them and DID No. 29/11 Mohinder Pandey Vs. Sunil Manchanda Etc. & Deep General Store Page No. 19 out of 20 claimant neither remained employee of management no.1 and has not been transferred from M2 to M3. Where as since claimant has not completed employment 240 days in preceding year with management no.3. Issue no.1 decided accordingly.
RELIEF
18. In view of my finding of issue no1. I held that since there is no employer employee relationship between claimant and M1 and claimant and M2. Where as since claimant has not remained in continuous employment for 240 days in preceding year with management no.3 therefore claimant is not entitled to any relief. Hence his claim petition is dismissed. Reference is answered accordingly.
19. 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). File be consigned to record room. Announced in the Open Court On this 17th February, 2014 (SANJEEV KUMAR) Presiding Officer : Labour Court Karkardooma Courts,Delhi.
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