Delhi District Court
Ajmal Hussain vs Price Water House Coopers P.Ltd on 17 July, 2025
MORE THAN FIFTEEN YEARS OLD
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Corrigendum Ref. No.: F-24/(47)/Lab./SD/2007/7043
Dated 30.06.2011
Corrigendum Ref. No.: F-24/(47)/Lab./SD/2007/2457
Dated 14.03.2011
Reference No.: F-24/(47)/Lab./SD/2007/2630
Dated : 11.03.2010
OLD ID NO. 351/10 & 130/11
LIR No.6446/2016
Workman
Sh. Ajmal Hussain
S/o Sh. Ahmed Hussain,
Driver, through Delhi Labour Union
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110054.
Vs.
The management of Price Water House Coopers (P) Ltd.
PWC Centre, Saidulajab, Opp.D-Block, Saket
Mehrauli, Badarpur Road, New Delhi-110030
through its Director
Date of Institution : 17.07.2010
Date of Arguments : 14.07.2025
Date of Award : 17.07.2025
AWARD
1. The Labour Department of the Govt. of National Capital Territory
of Delhi has referred an industrial dispute between above parties
for adjudication with the following terms of reference as under:-
LIR No.6446/2016 Page 1 of 30
"1. (a)Whether an employee-employer
relationship existed between the M/s Price
Water House Coopers Pvt. Ltd. and Sh.
Ajmal Hussain s/o Shri Ahmed Hussain (b)
if answer to question (a) above is in
affirmative, whether the services of Shri
Ajmal Hussain have been terminated
illegally and/or unjustifiably by the
management; and if yes, what relief he is
entitled and what directions are necessary in
this respect?"
2. Whether Sh. Ajmal Hussain s/o Sh.
Ahmed Hussain is entitled to be regularized
in the service of the above said
management, if yes; what directions are
necessary in this respect?"
3. "Whether Sh. Ajmal Hussain s/o Sh.
Ahmed Hussain is entitled to the benefit
like 22 days leave in a year, P.F., ESI,
gratuity etc. and if yes, since when, what
directions are necessary in this respect?"
2. The claimant filed the Statement of Claim wherein he pleaded that
he joined into the employment of the management as a Driver
w.e.f. 29.01.1987 and initially, he was paid a salary of Rs. 800/-pm.
It is claimed that the workman had unblemished and uninterrupted
record of service to his credit and as workman was discharging his
duties effectively, his salary also increased from time to time and
lastly he was getting a sum of Rs.6855/-pm.
3. It is claimed that though the workman was getting salary @
Rs.6855/-pm in lump sum but still it was too less and the workman
concerned was entitled to his salary in proper pay scale and
allowances with retrospective effect. It is claimed that the workman
LIR No.6446/2016 Page 2 of 30
concerned was not being paid any other facility like PF, Gratuity,
ESI etc., though he was entitled to the same and the said facilities
were also being given to the other employees. It is claimed that the
workman was also getting 22 days leave in a year but recently from
the year 2006, the management said that they will give only 10
days leave in a year. It is claimed that the management also
deducted 5 days salary from October 2006 salary and 2 days salary
from November 2006 salary on the plea that the workman had
already availed 10 days leave in the year 2006.
4. It is further claimed that the workman was discharging his duties
with the management since last about 18-19 years continuously and
his services are required to be regularized in proper pay scale with
all other allowances and benefits but the management has not taken
any steps in this regard and, therefore, the workman sent a demand
notice dated 13.12.2006 to the management through his union but
the management failed to either reply the said notice or to accede to
the demand of workman. Thereafter on 12.01.2007, the workman
filed a Statement of Claim before the Conciliation Officer, Govt. of
NCT of Delhi. It is further claimed that during pendency of the
above dispute, the management terminated the services of the
workman on 31.01.2007 by way of refusal of duties.
5. It is further claimed that the termination of services of workman is
wholly illegal, bad, unjust and malafide. It is claimed that the job
against which the workman was working is of a permanent and
regular nature and he has been continuously discharging his duties
since the last 18-19 years as a Driver. It is claimed that the action of
LIR No.6446/2016 Page 3 of 30
the management in non payment of due salary in proper pay scale
alongwith all due allowances like PF, ESI, Gratuity etc. is also
violative of Articles 14, 16 and 39(d) of Constitution of India. It is
claimed that there is no break in the service of workman since last
about 18-19 years. It is claimed that one other workman namely Sh.
Ganga Singh, Driver is getting his salary in proper pay scale
alongwith all dues allowances but the same are denied to the
workman. It is claimed that employing persons on regular nature of
jobs and treating them as a monthly paid/ muster roll workers and
paying them lesser remuneration than those doing the identical
work and the work of same value amounts to unfair labour practice
as provided in Section 2(ra) r/w Item No.10 of Fifth Schedule and
r/w Section 25 T punishable u/S 25 U of The Industrial Dispute
Act, 1947.
6. It is further claimed that the action of the management regarding
deduction of salary from the month of October and November 2006
is also totally illegal and unjustified and infact the workman is
entitled to 22 days leave in a years. It is further claimed that the
management by terminating the workman during the pendency of
aforesaid dispute pertaining to regularization, has violated Section
33 of The Industrial Disputes Act 1947 as no permission has been
obtained from the Assistant Labour Commissioner/ Conciliation
Officer for changing the service conditions of the workman. The
management is therefore, liable to be prosecuted u/S 31 of The
Industrial Disputes Act 1947 with imprisonment which may extend
to six months or with fine which may extend to Rs. One thousand
or with both.
LIR No.6446/2016 Page 4 of 30
7. It is further claimed that no notice u/s 9-A of The Industrial
Disputes Act 1947 has been served upon the complainant/workman
for changing his service conditions. Even otherwise, the
termination of services of the workman is in violation of Section
25-F, G and H of Industrial Disputes Act, 1947 r/w Rule 77 & 78
of Industrial Disputes (Central) Rules, 1957.
8. The claimant has prayed that there existed an employer-employee
relationship between him and the management of M/s Price Water
House Coopers Pvt. Ltd., and that his termination is illegal and
unjustified and the management be directed to reinstate him in
service with continuity and full back wages alongwith all
consequential benefits either monetary or otherwise. It is further
prayed that the management be directed to regularize his services
on the post of Driver with retrospective effect i.e. from his initial
date of joining i.e. 29.01.1987 in proper pay scale and allowances
and also to pay him entire difference of salary with all arrears on
the principle of Equal Pay for Equal Work with all arrears thereof.
9. The Management in its written statement has contended that the
claim of workman does not fall under the ambit of Section 2-A of
Industrial Dispute Act 1947 as there existed no employer-
employee relationship between the claimant and the management.
The claimant was never in the employment of the management and
no documentary evidence has been filed by him to show that he
was an employee of the management. It is further contended that
the claimant was the personal driver of Sh. Deepak Kapoor,
Executive Director of the management and this fact has been stated
even by the Sh. Kapoor in his reply before the Conciliation Officer.
LIR No.6446/2016 Page 5 of 30
In view of the fact that there never existed any employer-employee
relationship between the claimant and management, the present
reference may be answered such and it may be held that since there
existed no employer- employee relationship between the claimant
and the management, no relief is admissible to the claimant. It is
contended that the dispute about the entitlement under PF, Gratuity,
ESI Act which are independent Acts and self sufficient codes and
such reference is outside the jurisdiction of this Tribunal and
cannot form the subject matter of adjudication. All other averments
made in the claim are denied. It is prayed that the present reference
may be answered in favour of the management.
10. No rejoinder was filed on behalf of the claimant.
11. After completion of proceedings, following issue was framed by
the Ld. Predecessor on 21.03.2012:-
(i) As per terms of reference.
12. The claimant Sh. Ajmal Hussain examined himself as WW1 who
tendered his evidence by way of affidavit Ex. WW1/A and relied
upon documents Ex. WW1/1 to Ex. WW1/8. Workman also
tendered his additional affidavit Ex.WW1/A-1 in additional
evidence which was allowed vide order dated 19.01.2015 and he
further relied upon documents which are already marked exhibited
in his additional affidavit as Ex.WW1/4-A. To prove his case,
workman also examined Sh. Surender Bhardwaj as WW2, who
tendered his evidence by way of affidavit Ex. WW2/A and relied
upon documents Ex. WW2/1. Both these witnesses were duly
cross-examined by Ld. AR for the management and thereafter
LIR No.6446/2016 Page 6 of 30
workman evidence was closed and matter was fixed for
Management Evidence.
13. On the other hand, Management examined Sh. Shakir Iqbal,
Associate Director as MW1, who tendered his evidence by way of
affidavit Ex. MW1/A and relied upon documents Ex. MW1/1 to
Ex. MW1/34. ( Ex.MW1/2 & Ex.MW1/3 are being treated as Mark
A and Mark B respectively being photocopies of the documents).
This witness was duly cross examined by the workman and
thereafter management evidence was closed and matter was fixed
for final arguments.
14. Ld. AR for workman as well as Ld. AR for the Management have
advanced final arguments at length. I have perused the entire
records of the case including pleadings of the parties, evidence led
and documents proved during evidence.
15. My issue wise findings are as follow:-
Issue No. 1
(v) As per terms of reference.
Terms of Reference No. 1: Whether an employee-employer
relationship existed between the M/s Price Water House
Coopers Pvt. Ltd. and Sh. Ajmal Hussain s/o Sh Ahmed
Hussain (b) if answer to question (a) above is in
affirmative whether the services of SH. Ajmal Hussain
have been terminated illegally and/or unjustifiably by the
management; and if yes, what relief he is entitled and what
directions are necessary in this respect?
Terms of Reference No. 2 : Whether Sh. Ajmal Hussain s/o
Sh. Ahmed Hussain is entitled to be regularized in the
LIR No.6446/2016 Page 7 of 30
service of the above said management, if yes, what
directions are necessary in this respect?
Terms of Reference 3 : Whether Sh. Ajmal Hussain s/o Sh.
Ahmed Hussain is entitled to benefits like 22 days leave in
a year, P.F, ESI, gratuity etc and if yes, since when, what
directions are necessary in this respect?
16. The AR for the Workman has drawn attention to the judgement of
the Hon'ble Delhi High Court in Union Bank of India v. Mujahid
Qasim, 2020 SCC OnLine Del 1960, which extensively lays down
the factors relevant to determining the existence of an employer-
employee relationship. The AR has submitted that the Hon'ble
High Court, in the said judgment, has referred to and relied upon
various decisions of the Hon'ble Supreme Court, including PMS
Ltd. v. Union of India, (2020) 12 SCC 675 and Balwant Rai Saluja
v. Air India Ltd., (2014) 9 SCC 407. The relevant portion of the
judgement laying down the factors are as follows:
"49. In the light of the above decisions, the factors which are to
be considered, to determine as to whether an employer-
employee relationship exists would inter alia, include:
(a) who is the appointing authority;
(b) who is the pay master;
(c) who can select and dismiss;
(d) how long does the alternative service last;
(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 the establishment;
(h) the right to reject;
(i) who can take disciplinary action;
LIR No.6446/2016 Page 8 of 30
(j) whether there is continuity of service;
(k) whether the person was fully integrated into the
employer's concern
(integration test);
(l) who organizes the work, i.e., supplies tools and
materials; and
(m) who exercises control on when and how the work
is to be performed."
............
51. By applying the above tests, analyzing the case laws cited, and perusing the documents on record, as also the findings of the CGIT, there is no doubt that an employer-employee relationship exists between the Bank and the drivers. This is clear from an analysis of the documents placed on record which establishes the following facts:
(a) All Respondents were working as drivers with various Executives of the Petitioner Bank.
(b) At the time of appointment, the biodata of the drivers was submitted to the Bank, which was thereafter forwarded to the personnel administrative division of the Bank, located in the Head Office at Mangalore.
(c) The salary for the drivers was being reimbursed by the bank to the Executives concerned, by means of vouchers.
(d) The drivers have served in the Bank for several years.
(e) The drivers did not merely work for the Executives, but also did various other sundry jobs such as collection/delivery of documents/packets/parcels/items/equipment from various locations for the Bank.
(f) Expenses incurred by them were reimbursed by the Bank.
(g) The Bank has issued letters confirming the salaries earned by the drivers.
(h) The Bank has facilitated the driving license being obtained by the drivers, by issuing them certificates that they are working in the Bank. The text of one such certificate is set out below:--
"This is to certify that Sh. Naresh kumar, s/o Sh. Daya ram is an employee of our bank. He is working with us since last four years. As per our records he is residing at LIR No.6446/2016 Page 9 of 30 D-5/103, Tisra Pusta, Vijay Colony, new Usman Pur, Delhi-110053.
This certificate is issued in his specific request as he has to produce for making driving license.
We confirm the same."
(i) The vouchers issued by the Bank for the monthly payments to the drivers, mention the particulars as "amount drawn for reimbursement of driver" or the "amount paid to the driver. Reimbursed" @ page 120, 121 of the paper books "cash paid to Surinder on account of car driver salary month of May 2006 by AGM" @ page 124; etc.
(j) Copies of logbooks showing the details of travel of the car, petrol consumed, purpose etc.
52. The above facts have been gleaned from the large number of documents placed on record and cannot be disputed by the Bank.
53. The documents on record also show that the drivers have not been exclusively used for the executives of the Bank but have also been serving the Bank in various roles including picking up parcels, computers, running errands, claiming reimbursements, taking delivery of cars and other sundry jobs. Further, the Bank has given them letters and certificates, repeatedly confirming that they are the drivers of the Bank for issuance of licenses and for renewal of driving licenses. The initial appointment was also made after confirmation with the Head Quarters of the Bank. Complete reimbursement of salaries and well as expenses of the drivers has been given by the Bank. A logbook also has been maintained to supervise their day-to-day movements and activities.
54. Therefore, irrespective of whichever test is applied, whether it be the control test, or the integration test or any of the other tests, the above facts clearly show that the functions performed by the drivers was integral to the everyday working of the bank. The documents establish the existence of employer-employee relationship and that the drivers were the employees of the Bank. They were not retained through an independent contractor and that is not even the case of the Bank. The Bank's case that LIR No.6446/2016 Page 10 of 30 the drivers were exclusively working for Executives is also negated, as it has been proved, on record, that the drivers would continue to remain in the same place irrespective of the transfer or retirement of the Executive and they would be placed under different Executives or the incumbent. The case of the Bank that they were employees of the Executives is thus belied.
55. Hence, in view of the above facts and discussion, this Court has no doubt that the drivers were the employees of the Bank.
17.The judgment in Mujahid Qasim (supra) is particularly relevant to the present case, as it dealt with a similar issue, wherein the management/bank contended the workmen therein (Driver) worked as an independent service provider only for the employees of the management, and that the management bank had no relationship whatsoever with the workman therein.
18.Keeping in view the factors laid down in Mujahid Qasim (supra), this Tribunal has to assess whether the workman was an employee of the management or merely provided independent services in his personal capacity to Sh. Deepak Kapoor, as contended by the management.
19.The management has argued that there exists no employer-employee relationship between the management and the workman. It is asserted that the workman was never engaged on the rolls of the management but was instead the personal driver of Mr. Deepak Kapoor, Executive Director, who engaged the workman in his personal capacity. In support of this contention, the management has relied on the reply submitted by Mr. Deepak Kapoor before the Conciliation Officer, and the bank statement of Mr. Deepak Kapoor LIR No.6446/2016 Page 11 of 30 for the period 2004 to 2006, purportedly evidencing monthly payments made by Mr. Deepak Kapoor to the workman in his personal capacity as wages.
20.The workman, on the other hand, contended that he has been working as a Driver for the management continuously and uninterruptedly since 29.01.1987. To establish the employer- employee relationship, the workman has placed reliance on the documents i.e. Ex. WW1/4 Identity Card issued by "Price Waterhouse" to Ajmal Hussain, bearing an employee code (200C). Mark-B: A voucher dated 16.03.1995 issued on the letterhead of "Price Waterhouse," indicating a payment of Rs. 550 to the workman for uniform and shoes. Ex. WW1/5: An experience certificate issued on the letterhead of "Price Waterhouse," certifying that:
"This is to confirm that Mr. Ajmal Hussain, resident of House No. 1280/81, Gali Shariwali, Kola Mahal, Darya Ganj, New Delhi-110002 whose photograph and signature duly certified by me are appended below, is serving us as our car driver since more than eight years."
21. The management has contended that the documents relied upon by the workman are false and fictitious. It has been argued that the documents do not pertain to the management, as the company's name is "Price Waterhouse Coopers Pvt. Ltd.", whereas the documents submitted bear the name "Price Waterhouse." On this point, the AR for the workman has pointed towards the website of the management which shows the historical mergers of the management at <https://www.pwc.com/us/en/about-us/pwc-
LIR No.6446/2016 Page 12 of 30corporate-history.html> under the heads of "History and milestones". From the perusal of the history, it is evident that in the year 1998 both "Price Waterhouse" and "Coopers & Lybrand" were merged to become "Pricewaterhouse Coopers". Thus, the argument of the management that the "Price Waterhouse" and "Pricewaterhouse Coopers" are separate entities and have no relations to each other is belied with their own website.
22. The management has placed on record a document, which was taken on record vide order dated 17.07.2025, purportedly to show that the offices of the management across Delhi do not include any reference to 'Price Waterhouse'. However, upon careful perusal of the said document, this Tribunal is of the considered opinion that the same does not advance the case of the management. It is pertinent to note that 'Price Waterhouse' had already merged with 'Coopers & Lybrand' in the year 1998, and therefore, the current list of offices, which reflects the post-merger structure, holds no relevance for the purpose of adjudicating the present dispute.
23.Further, the I.D. Card issued to the workman, i.e., Ex. WW1/4, was issued by "Price Waterhouse" and bears the address of the management as "Price Waterhouse, Saidullajab, Opposite D-Block, Saket, Mehrauli-Badarpur Road, New Delhi-110030." Ex. MW1/2, being the reply filed by the management before the Conciliation Officer on its official letterhead, also reflects the same address, i.e., "PWC Centre, Saidullajab, Opposite D-Block, Saket, Mehrauli- Badarpur Road, New Delhi-110030." This indicates that both entities shared the same address. Moreover, the certificate of LIR No.6446/2016 Page 13 of 30 experience was issued to the workman on the letterhead of "Price Waterhouse" and was signed by Mr. Deepak Kapoor, the same individual who held the position of Executive Director/Director with the management. In view of the above, this Tribunal is of the considered opinion that "Price Waterhouse" and "Price Waterhouse Coopers Pvt. Ltd." are not distinct entities but, in fact, one and the same. The contention of the management of the existence of separate and independent entities appears to be a mere facade designed to evade accountability for the documents placed on record by the workman. The doctrine of lifting the corporate veil is applicable in the present case, as it uncovers the true character of the entities and their operations, and thus establishes that "Price Waterhouse" and "Price Waterhouse Coopers Pvt. Ltd." are one and the same entities.
24.The management, in support of its defence, examined one Mr. Shakir Iqbal, who is currently employed as a Human Capital Manager. Notably, the said witness in his cross-examination dated 26.08.2022 admitted that he joined the management in October 2010 and that he does not have any personal knowledge about the facts of this case prior to his joining in October 2010; and that his statement is based solely on the records of the management. When the said witness was asked about the documents/material based on which he prepared his statement i.e. examination-in-chief. To which, the witness stated that he only checked whether the name of the workman Sh. Ajmal Hussain is on the rolls of the Management, and none was found by him, except for this there was stated to be no LIR No.6446/2016 Page 14 of 30 other material on the basis of which he prepared his Affidavit. However, when probed further, the witness stated the following:
"........ (Check) not not tried to see the list of workers who were appointed in the year 1987 by the Management." He also stated that he has "not seen the rolls of the Management in regard to the workers who were employed from 1987 to 2007. It is correct that the Management maintains the complete service records of all its workers, their payments, attendance etc. Vol. (The records are destroyed after a certain period). I did not inquire from the Management to the effect as to whether the service record of the concerned workman Sh. Ajmal Hussain is still maintained for the period from 1987 to 2007 or not. Vol. (No unique employee number, ID or appointment letter etc was given by the workman which would make him identifiable in the records of the Management). I can not say as to how many Drivers were working with the Management from 1987 to 2007."
Q. I put it to you that the unique ID number of the workman as 0367 and employee no.200C is given in the document now marked as Mark A?
A. The document pertains to Firm Price Waterhouse and not to the Management in the present case. This document does not have the seal of the Management nor the signature of any authorized signatory of the Management."
24. The witness examined by the management had joined the establishment only in the year 2007, and admittedly, the workman was not in service at that time. His knowledge is entirely based on the records of the management. However, despite this, he admitted during cross-examination that he did not make any effort to examine crucial documents or records pertaining to the period when the workman is alleged to have been employed by the management.
LIR No.6446/2016 Page 15 of 3025. The witness specifically conceded that he did not review the list of workers appointed in the year 1987, nor did he examine the records of employees who served between 1987 and 2007. Although he confirmed that the management maintains service records of its employees, including their payments and attendance, he still failed to peruse those records. He further admitted that he did not ascertain how many drivers were engaged by the management during the said period. Most significantly, he did not even attempt to inquire whether the service records of the workman, Mr. Ajmal Hussain, for the period 1987 to 2007, were still being maintained. The justification offered by the witness was that, since no employee number, ID, or appointment letter had been provided by the workman, it was not possible to identify him in the records. However, when confronted with a document (Mark A) containing the workman's unique ID number (0367) and employee number (200C), the witness evaded by claiming that the said document pertains to "Price Waterhouse" and not to the management, i.e., "Price Waterhouse Coopers Pvt. Ltd." This explanation, however, stands refuted in light of the findings of this Tribunal above, which establish that both entities are in fact the same. Thus, the witness's attempt to draw a distinction between the two appears to be a pretext to avoid accountability. It is evident that the witness deposed in his Affidavit without having examined the relevant records of the management. His testimony is based on mere presumptions. He neither had personal knowledge of the relevant period nor made any effort to verify the records before testifying. In view of the above, this Tribunal finds that the witness is unreliable, and his testimony cannot be accorded any evidentiary value.
LIR No.6446/2016 Page 16 of 3026. It is an admitted position by the MW-1 (in cross-examination dated 13.02.2024) that the management provides vehicles to its senior officials, including Executive Directors and the Chairman. The witness has deposed that such vehicles are leased in the name of the management. He further stated that expenses, such as fuel and insurance are initially borne by the concerned employee and are subsequently reimbursed by the management. However, when confronted with the suggestion that the salaries of the drivers engaged for these vehicles are also reimbursed by the management, MW-1 denied the same. He stated that, "as per the company car lease policy, salary is not reimbursed." The witness undertook to place the said car lease policy on record. The document has been marked as Mark-B. However, it is pertinent to note that this document pertains only to the year May 2024. No policy whatsoever has been placed on record for the period between 1987 and 2007 i.e. the duration during which the workman is alleged to have been in service. Accordingly, the said policy has no bearing on the present case and cannot be relied upon, as it does not reflect the practices or terms prevailing during the relevant period. Since the policy does not pertain to the period in question, it lacks both relevance and admissibility for the purpose of resolving the present issues.
27. The material witness in the present case, namely Sh. Deepak Kapoor, was not produced by the management for examination before this Tribunal. It is pertinent to note that during the cross-examination dated 13.02.2024, MW-1 categorically admitted that "Sh. Deepak Kapoor is alive." Despite this, the said individual was neither LIR No.6446/2016 Page 17 of 30 summoned nor examined by the management. It is also on record that Sh. Deepak Kapoor is stated to have filed a reply before the Conciliation Officer in support of the management's case and has purportedly submitted a Bank statement covering a selective period from 2004 to 2006. Even otherwise, no explanation has been furnished by the management as to why the complete bank statement, particularly for the period from 1987 to 2007, has not been placed on record. Moreover, Sh. Deepak Kapoor has failed to appear before this Tribunal to prove the authenticity and contents of the said documents.
28. The case set up by the management is that it merely facilitates the providing of cars to its senior officials, namely Executive Directors and the Chairman. It is an admitted fact that such cars are leased in the name of the company. However, despite having had the opportunity, the management has failed to place on record the applicable car lease policy that was in force at the relevant time when such vehicles were allegedly provided to Sh. Deepak Kapoor, or to clarify the terms and conditions governing such arrangements. In contrast, the workman has produced documentary evidence indicating that he had been working with the management. He had been provided with shoes, uniform etc. by the management. An identity card bearing a specific employee code/number was also issued to him by the management. The workman has furnished sufficient and credible evidence establishing his continuous employment with the management for a substantial number of years. The failure of the management to produce the material witness, namely Sh. Deepak Kapoor, coupled with the testimony of MW-1, who admittedly deposed without examining the relevant LIR No.6446/2016 Page 18 of 30 records is fatal to the management case. In view of the foregoing discussion, this Tribunal is of the considered opinion that an employer- employee relationship exists between M/s Price Waterhouse Coopers Pvt. Ltd. and Sh. Ajmal Hussain S/o Sh. Ahmed Hussain. Accordingly, the terms of reference at point (a) are answered in the affirmative, in favour of the workman and against the management.
29. Since the answer to the terms of reference (a) is in affirmative, the second reference arises (b) is - whether the services of Sh. Ajmal Hussain have been terminated illegally and/or unjustifiably the management; and if yes, what relief he is entitled and what directions are necessary in this respect?
30. The AR for the workman has contended that the services of the workman were terminated illegally and in contravention of Section 33 of the Industrial Disputes Act, 1947, as the workman had already raised an industrial dispute regarding the regularisation of his services by filing a claim before the Conciliation Officer, which was pending before the said authority at the time of termination. It was further argued that the management failed to comply with the mandatory provisions of Sections 25F, 25G, and 25H of the I.D. Act, inasmuch as no notice, notice pay, or retrenchment compensation was provided. The termination was also in violation of the 'last come, first go' principle, and the management further erred by engaging fresh hands without offering re-employment to the workman.
31. Section 33 of the I.D. Act states the following:
LIR No.6446/2016 Page 19 of 30[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.--(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,--
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
32. The Hon'ble Supreme Court, in Bhavnagar Municipality v. Alibhai Karimbhai, (1977) 2 SCC 350, while dealing with the issue of LIR No.6446/2016 Page 20 of 30 maintaining service conditions during the pendency of an industrial dispute relating to permanency of employment, held as under:
"13. .....In this particular case, however, the subject-matter being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this case has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute.
14. The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however, insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of Section 33 which is principally directed to preserve the LIR No.6446/2016 Page 21 of 30 status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33(1)(a) of the Act and the complaint under Section 33-A, at the instance of the respondents, is maintainable. The submission of Mr Parekh to the contrary cannot be accepted.
33. Likewise, in the recent case of Shripal v. Nagar Nigam, 2025 SCC OnLine SC 221, the Hon'ble Supreme Court dealt with Section 6E of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 33 of the Industrial Disputes Act, 1947, and held that -
"9. On a plain reading of this section, we can deduce that any unilateral alteration in service conditions, including termination, is impermissible during the pendency of such proceedings unless prior approval is obtained from the appropriate authority. The record in the present case does not indicate that the Respondent Employer ever sought or was granted the requisite approval. Prima facie, therefore, this conduct reflects a deliberate attempt to circumvent the lawful claims of the workmen, particularly when their dispute over regularization and wages remained sub judice. Therefore, it is a settled position of law that the service conditions of a workman must remain unchanged during the pendency of an industrial dispute. Any action undertaken by the employer to alter such service conditions to the detriment of the workman, without obtaining prior permission or approval from the appropriate authority, is void ab initio. Reliance in this regard is placed on the judgments of Badshah Singh v. Delhi Jal Board , LPA No. 604/2014 decided on 27.08.2019; Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) Nos. 87-88 of 1988 decided on 17.01.2002; and Tops Security Ltd. v. Subhash Chander Jha, LPA No. 1044/2011 decided on 16.07.2012.LIR No.6446/2016 Page 22 of 30
Attention is invited to Paragraphs No. 4 to 6 of the Statement of Claim filed before this Tribunal, wherein the workman has categorically stated that he filed a Statement of Claim before the Conciliation Officer, Government of India, on 12.01.2007, seeking regularisation of his services. It is further stated that during the pendency of the said industrial dispute, the management illegally terminated his services on 31.01.2007 by way of refusal of duties. In response, the management, in its written statement, has admitted that the contents of Para 4, insofar as they relate to the filing of the Statement of Claim, are a matter of record and not disputed. It is further acknowledged by the management that it had also submitted its reply to the said claim on 09.02.2007.
34. The management in its cross-examination dated 13.02.2024, MW-1 admitted that, "it is a matter of record that the workman Sh. Ajmal Hussain had raised an industrial dispute against the management in January 2007 before the Asst. Labour Commissioner, Govt. of NCT of Delhi. It is a matter of record that Asst. Labour Commissioner issued a notice to the management in the said dispute and the management appeared before the Asst. Labour Commissioner and filed its reply dated 09.02.2007..... I am not aware if workman Sh. Ajmal was stopped from driving the car leased by the management to Sh. Deepak Kapoor after 31.01.2007."
35. Further, in his cross-examination dated 19.10.2024, MW-1 also admitted that, "it is correct that management never filed any application for permission or approval before the conciliation officer prior to terminating services of the claimant."
36. The factum of the date of termination, i.e., 31.01.2007, has not been disputed by the management. When the management witness (MW-1) was specifically confronted as to whether the workman was LIR No.6446/2016 Page 23 of 30 stopped from driving the car leased by the management to Sh. Deepak Kapoor after 31.01.2007, he expressed lack of awareness. The only dispute raised by the management pertains to the denial of an employer-employee relationship with the workman. However, in view of the findings recorded hereinabove, it stands established that the workman was indeed employed by the management. Consequently, the defense regarding absence of an employer-employee relationship cannot come to the aid of the management and stands rejected.
37. In reference to Section 33 of the Industrial Disputes Act, it is pertinent to note that the management has not produced any document to show compliance with the said provision prior to effecting the termination of the services of the workman. It is an admitted position, as deposed by MW-1, that no application seeking permission or approval was ever filed by the management before the Conciliation Officer prior to the termination of the workman. Even otherwise, the termination stands in clear contravention of the mandatory provisions of Sections 25F and 25G of the Industrial Disputes Act. It is admitted that no retrenchment compensation, notice, or notice pay was either offered or paid to the workman. Furthermore, the management has failed to place any material on record to establish adherence to the principle of 'last come, first go' before terminating with the services of the workman.
38. In view of the above, and after considering the entire material on record as well as the legal submissions advanced by both parties, this Tribunal is of the considered opinion that the services of the workman were illegally terminated by the management during the pendency of LIR No.6446/2016 Page 24 of 30 the industrial dispute regarding regularisation, and in contravention of Section 33 of the Industrial Disputes Act, without seeking prior approval or permission from the competent authority. The said termination is also in violation of Sections 25F and 25G of the Industrial Disputes Act. Accordingly, the termination of the workman with effect from 31.01.2007 is held to be illegal and void ab initio.
39. The AR for the workman have argued that once the termination is held to be illegal the normal relief is to award reinstatement with continuity in service and full backwages. He placed reliance upon the judgement of Hon'ble High Court in Delhi Transport Corporation vs Ram Kumar And Another, 1982 (44) FLR 356 wherein it was held that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 14 of the aforementioned judgement is as follows:
"......The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 :
(1980)ILLJ137SC . Thus if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led LIR No.6446/2016 Page 25 of 30 or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. "If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule."
40. Further, in Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013 decided on 12.08.2013 , wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."LIR No.6446/2016 Page 26 of 30
41. The workman, in his Statement of Claim as well as in his evidence affidavit (Ex. WW1/A), has categorically deposed that he remained unemployed following his illegal termination by the management despite his best efforts for seeking job elsewhere. The management has not led any evidence to rebut this or to establish that the workman was gainfully employed elsewhere after 31.01.2007. The MW-1 also admitted that "the management has no material or document to show that the claimant is gainfully employed elsewhere after 31.02.2007." It is a settled principle of law that the burden lies upon the employer to prove that the workman was gainfully employed and earning wages equivalent to or substantially similar to what he was drawing prior to his termination. In the present case, the management has failed to discharge this burden.
42. In the absence of any evidence on record to show that the workman was gainfully employed, this Tribunal cannot proceed on the presumption of such employment. Ld. AR for the management has contended that the services of the workman were terminated way back on 30.01.2007, and a considerable period i.e. over 18 years has since elapsed. It has also been submitted that the workman would have crossed the age of superannuation by now. Taking into account the long passage of time and the fact that the workman has attained the age of superannuation, this Tribunal is of the considered view that the relief of reinstatement is not appropriate in the present case. However, in view of the finding that the termination of the workman has been held to be illegal and void ab initio, this Tribunal is of the considered opinion that the ends of justice would be adequately met if the period LIR No.6446/2016 Page 27 of 30 from the date of illegal termination, i.e., 31.01.2007, till the date of superannuation of the workman is treated as a period spent on duty for all intent and purposes. The workman shall be entitled to continuity in service, full back wages (reckoned on minimum wages applicable to skilled workers, considering that the work of a Driver is classified as skilled work), along with all consequential benefits, including but not limited to the benefit of gratuity. Accordingly, the terms of reference no. 1 are answered partly in favour of the workman and against the management.
43. Terms of Reference No. 2 : Whether Sh. Ajmal Hussain S/o Sh. Ahmed Hussain is entitled to be regularized in the service of the above said management, if yes, what directions are necessary in this respect?
44. The workman has also sought regularisation of his service in the establishment of the management. However, in the context of private employment, particularly in non-government establishments, there exists no statutory concept of "regularisation", unlike in government or public sector undertakings, where employment is governed by sanctioned posts, service rules, and regulatory frameworks. In the present case, it is undisputed that the workman has already attained the age of superannuation. Once an employee has superannuated, the relief of regularisation becomes superfluous, especially in private employment, where there is no distinction between a "regular" and a "non-regular" employee once an employer-employee relationship is established. Hence, the demand for regularisation under private employment is not tenable in the present case. Accordingly, this Term LIR No.6446/2016 Page 28 of 30 of Reference No. 2 is answered in favour of the management and against the workman.
45. Terms of Reference 3 : Whether Sh. Ajmal Hussain s/o Sh. Ahmed Hussain is entitled to benefits like 22 days leave in a year, P.F, ESI, gratuity etc and if yes, since when, what directions are necessary in this respect?
46. The workman, Sh. Ajmal Hussain, through his Statement of Claim, has raised a demand for benefits including 22 days of leave per year, Provident Fund (P.F.), Employees' State Insurance (E.S.I.), gratuity etc. It is an admitted position on record that the workman has, by now, attained the age of superannuation. Accordingly, the reliefs pertaining to annual leave, P.F., and E.S.I. benefits, have become infructuous and do not warrant adjudication. As far as the demand of gratuity is concerned, the same has already been decided above. Accordingly, Term of Reference No. 3 is answered in these terms.
Relief:
47. In view of my foregoing findings this Tribunal holds that an employer-employee relationship exists between M/s Price Waterhouse Coopers Pvt. Ltd. and Sh. Ajmal Hussain S/o Sh. Ahmed Hussain. This Tribunal also holds that the services of the workman were illegally terminated by the management during the pendency of the Industrial Dispute regarding regularisation, and in contravention of Section 33 of the Industrial Disputes Act, without seeking prior approval or permission from the competent authority. The said termination is also in violation of Sections 25F and 25G of the Industrial Disputes Act.
LIR No.6446/2016 Page 29 of 30Accordingly, the termination of the workman with effect from 31.01.2007 is held to be illegal and void ab initio. Therefore, given that the termination of the workman has been held to be illegal and void ab initio, the ends of justice would be adequately met if the period from the date of illegal termination, i.e., 31.01.2007, till the date of superannuation of the workman is treated as a period spent on duty for all intent and purposes. The workman shall be entitled to continuity in service, full back wages (reckoned on minimum wages applicable to skilled workers, considering that the work of a Driver is classified as skilled work), along with all consequential benefits, including but not limited to the benefit of gratuity. The management is directed to implement the award within 60 days of the publication of this award, failing which the management will be liable to pay interest @ 8 % per annum from the date of terms of reference i.e. 30.06.2011 till its realisation. The award is passed accordingly.
48. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record's after due compliance.
Digitally signed by MOHINDER MOHINDER VIRAT VIRAT Date: 2025.07.17 Announced in the open Tribunal 16:06:11 +0530 on this 17.07.2025. (Mohinder Virat) POIT-I/RADC, New Delhi. LIR No.6446/2016 Page 30 of 30