Delhi District Court
Bhan Singh vs M/S. Vivid Advertising And Marketing on 29 January, 2025
IN THE COURT OF Dr. SURENDER MOHIT SINGH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LID No. 561/19
CNR No. DLCT13-003425-2019
In the matter of:
Shri Bhan Singh
S/o Sh. Heera Singh,
R/o J-536, Sardar Colony,
Sec-15, Rohini, Delhi-89
Through: Jagriti Mazdoor Sangh (Regd.)
E-12, 1st floor, Karampura,
New Delhi-15.
... Workman
Versus
M/S Vivid Advertising & Marketing,
Through its prop. Sh. Kamal Jaitely,
401& 411, Deepshikha Building,
8 Rajendra Place, New Delhi-08
...Management
Date of Institution : 06.08.2019
Date of Award : 29.01.2025
AWAR D
1. The present claim petition is filed u/s 2A of the
Industrial Dispute Act, 1947 on behalf of workman against
alleged illegal termination from services on 01.10.2018 seeking
relief of reinstatement along with back wages.
2. As per the petition, the workman was employed with
the management on the post of driver since January, 2010 at a
monthly salary of Rs.17500/-. It is averred that workman was not
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 1/13
provided any basic facilities like leave book, over-time card,
bonus, ESIC, PF etc. It is further averred that workman had been
discharging his duties with complete devotion without complaint
during his service tenure but was not allowed to join duty on
01.10.2018.
3. It is further averred that repeated requests for
reinstatement in service followed by complaint sent to Assistant
Labour Commissioner were neglected by management and
demand notice dated 24.12.2018 sent through registered post
seeking reinstatement in service was also neither replied nor
complied. It is also averred that workman being unemployed
since the date of termination of service without any rhyme or
reason and without issuing show-cause notice is facing hardships
and is entitled to be reinstated with continuity of service and
other consequential benefits including full back wages.
4. Written statement filed by management M/s Vivid
India Advertising & Marketing contesting the claim inter alia on
following grounds:
(a) Shri Bhan Singh was never been terminated rather he
had voluntarily resigned from his services w.e.f
31.12.2013 as mentioned by him in the PF form
no.10C.
(b) There exist no employer-employee relationship
between the workman and the management after
alleged date of termination of service i.e. 01.10.2018.
(c) The workman had taken an advance of Rs.50000/- on
13.09.2012 from management on pretext of some
urgent work but the same was not returned till date and
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 2/13
the present case is filed to evade the due payment.
5. Averments in the claim have been denied in para-wise
reply on merit and following issues were settled on 16.01.2023:
1. Whether claimant Shri Bhan Singh S/o Sh. Heera
Singh, working with management as Driver since
January, 2010 has been illegally removed from
service in violation of Section 25F and 25G of I.D.
Act, 1947 on 01.10.2018?...OPW
2. Whether claimant has voluntarily resigned from
services on 31.12.2013 and there was no employer-
employee relation existing between parties on
alleged date of termination of service? .... OPM
3. Relief.
6. Workman has tendered his evidence by way of
affidavit Ex.WW1/A and relied upon following documents in his
examination-in-chief recorded on 16.03.2023:
(a) Copy of demand notice dated 24.12.2018- Ex.WW1/1.
(b) Original postal receipt- Ex.WW1/2.
(c) Office copy of statement of claim- Ex.WW1/3.
(d) Copy of ESI, PF and identity card are Ex.WW1/4,
Ex.WW1/5 and Ex.WW1/6 respectively.
(e) Original failure report dated 08.07.2019- Ex.WW1/7.
7. AR for management cross-examined WW1 and
workman's evidence was closed on 06.12.2023. Relevant extract
of his cross-examination is as under:
"I was employed as driver by management
M/S Vivid Advertising and Marketing. I
joined management in the year 2012. I have
not withdrawn amount deposited in PF
Authority".
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"Witness has admitted date of appointment
recorded as 01.06.2011 in the Temporary
Identity Certificate submitted with ESIC
which is Mark-WW1/M2".
"No tracking report of demand
notice dated 24.12.2018 has been filed on
judicial record".
"It is correct that statutory
benefits as ESI and PF were provided by
management. It is correct that no document
has been filed regarding overtime
wages/duty".
8. Shri Kamal Kishore, on behalf of M/s Vivid
Advertising and Marketing examined as MW1. MW1 tendered
his evidence by way of affidavit Ex.WW1/A and relied upon
following documents:-
(a) Copy of Form-19 of EPF - Mark WW1/M1.
(b) Copy of Form-10C of EPF- MW1/Mark A.
(c) Copy of ledger account of Bhan Singh- MW1/Mark B.
(d) Copy of Annex of details of advance- MW1/Mark C.
(e) Copy of TIC issued by ESI- Mark WW1/M2.
(f) Copy of search member services- MW1/Mark D.
9. AR for the workman cross-examined MW1. Relevant
extract of his cross-examination is as under:
"As far as I remember, I had appointed
workman in the month of June, 2011 as a
driver. I do not remember whether the
management had given any appointment
letter to the workman or not due to lapse of
time".
"The management used to
maintain the record pertaining and wages of
its employees".
"I had given the full and final
amount to the workman but due to lapse of
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 4/13
time, I do not remember the exact period and
exact amount. I had not filed any document
in support of full and final payment made to
the workman".
10. Management has also summoned one witness from
EPFO department and examined him as MW2. On 27.11.2024,
ME was closed and matter was listed for final arguments.
11. AR for both the parties addressed their arguments.
12. Shri Ajeet Kumar Singh, AR for workman has argued
that workman has proved his case and urging reinstatement in
service with all consequential benefits including back wages by
insisting illegal termination of services in violation of Section
25F of I.D. Act in absence of any domestic enquiry.
13. On the other hand, Shri V.N Sharma, AR for
management has vehemently argued that workman has failed to
prove employee-employer relationship on the date of alleged
termination i.e. 01.10.2018 and urging that workman has
voluntarily resigned from his job on 31.12.2013. AR for the
management relied upon judgment of Hon'ble Delhi High Court
in case titled as G.D. Engineering Works Vs. Arvind Kumar, W.
P. (C) 474/2017 & CM No. 932/2014, decided on 09.10.2015.
14. AR for the management also argued that the present
claim filed by the claimant does not fulfill the pre-condition of
Industrial Dispute as claimant has not served any demand notice
for his reinstatement before approaching the conciliation officer
with regard to his alleged termination.
15. I have considered their submissions and perused
pleadings and evidence adduced on judicial file.
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 5/13
FINDING ON LEGAL CONTENTION:
16. The contention raised by the AR for the management
that unless demand notice is served to the management prior to
filing of claim before conciliation officer an Industrial Dispute
doest not come into existence till that time, is a legal contention.
Hence, before proceeding to decide the present claim petition,
this court is duty bound to decide the maintainability of the
present claim petition.
17. In Sindhu Resettlement Corporation Ltd. Vs.
Industrial Tribunal of Gujarat, cited as AIR (1968) SC 529, the
Hon'ble Supreme Court had settled the position of law that in the
absence of service of demand notice to the management prior to
filing of claim before the conciliation officer, Industrial Dispute
does not exist.
18. In Nagendra Sharma Vs. Management of M/S
Rajasthan Timbers Corporation, ILR (2006) 1 Delhi 1030 , the
Hon'ble High Court, Delhi also reiterated the same and held that
unless the workman serves a demand notice for his reinstatement
on the management, the Industrial Dispute does not come into
existence till that time.
19. It is the case of the workman that the demand notice
Ex.WW1/1 was duly served to the managements prior to filing of
claim before Conciliation Officer Ex.WW1/3.
20. On perusal of record, it reveals that demand notice
(Ex.WW1/1) and postal receipts (Ex.WW1/2) both bears the date
as 24.12.2018 and the claim filed before the conciliation officer
(Ex.WW1/3) bears the date as 26.12.2018.
21. The time gap between the date of postal receipts and
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 6/13
claim filed before conciliation officer is of only two days and no
tracking report is on record. Hence, it is difficult to ascertain
whether the demand notice was served to the management prior
to filing of the claim before conciliation officer.
22. Accordingly, in view of settled position of law in
Sindhu resettlement (supra) and Nagendra Sharma (supra) cases,
the present petition is not maintainable.
FINDINGS ON ISSUES:
Issue no.1-Whether claimant Shri Bhan Singh S/o Sh. Heera
Singh, working with management as Driver since January, 2010
has been illegally removed from service in violation of Section
25F and 25G of I.D. Act, 1947 on 01.10.2018?...OPW
Issue no.2-Whether claimant has voluntarily resigned from
services on 31.12.2013 and there was no employer-employee
relation existing between parties on alleged date of termination
of service? .... OPM
23. Both the issues being interconnected to each other are
taken together.
24. It is settled law that the provisions of Indian Evidence
Act, 1872 per se are not applicable in the industrial adjudications.
The general principles of it are, however, applicable and the
principles of natural justice are complied with.
Burden of Proof:-
25. It is well settled principle of law that a person who
sets up a plea of existence of employer-employee relation is
required to adduce cogent evidence for discharging the burden as
held by Hon'ble Supreme Court of India in ' Workmen of Nilgiri
Co-operative Marketing Society Vs. State of Tamil Nadu and
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 7/13
Ors. (2004) 3 SCC 514'. Paras 47 to 49 of the judgment of
Hon'ble Apex Court being relevant are extracted below:
47. It is a well-settled 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. Secy, Thodupuzha
Taluk Shop and Commercial Establishment
Workers' Union, the Kerala High Court held:
The burden of proof being on the workmen
to establish the employer-employee
relationship an adverse inference cannot be
drawn against the employer that if he were to
produce books of accounts they would have
proved employer-employee relationship.
49. In Swapan Das Gupta Vs. The First
Labour Court of West Bengal it has been
held:
Where a person asserts that he was a
workmen 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.
26. In Automobile Association of Upper India Vs. PO
Labour Court, 2006 LLR 851, the Hon'ble High Court, Delhi has
also held that appointment of workman can be proved by
producing the appointment letter, written agreement, attendance
register, salary register, leave record of ESI or provident fund etc.
by the workman. The workman can also call the record from the
management. Para 14 and 15 of the said judgment read as under:-
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 8/13
"14. Engagement and appointment in service
can be established directly by the existence
and production of an appointment letter, a
written agreement or by circumstantial
evidence of incidental and ancillary records
which would be in the nature of attendance
register, salary registers, leave record, deposit
of provident fund contribution and
employees state insurance contributions etc.
The same can be produced and proved by the
workman or he can call upon and caused 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 call 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.
15. In the instant case, the workman filed an
affidavit by way of evidence on the 29th
April, 1993 and closed his evidence. Thus,
the only evidence in support of the plea of
employment was the self serving affidavit
filed by the workman and nothing beyond
that to support his claimed plea of service of
seven years. In view of the principles laid
down by the Supreme Court in Range Officer
v. S.T. Hadimani, II (2002) SLT 154 such
affidavit by itself is wholly insufficient to
discharge the burden of proof on the
workman."
27. Upon perusal of the aforementioned judgments, it can
be summarily stated that the position with regard to the burden of
proving the relationship of employee-employer is no longer res
integra, the said burden primarily rests upon the person who
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 9/13
asserts its existence, but the degree of proof which is required to
be established, varies on a case to case basis.
28. Furthermore, as per the settled position of law, the
claimant must prove the existence of the employee-employer
relationship by way of, either direct evidence (producing a letter
of appointment or a written agreement between the workman and
the management) and/or via circumstantial evidence of
incidental/ancillary nature, failing which the claim may not be
entertained by the Court.
29. The case of the workman is that the management has
illegally terminated his service on 01.10.2018. On the other hand,
the defense of the management is that the workman himself
resigned from his service on 31.12.2013.
30. The claimant has relied upon Copy of ESI form
(Ex.WW1/4) and PF form (Ex.WW1/5) to prove that he was
working with the management till the date of alleged termination
i.e. 01.10.2018. However, on bare perusal, it reveals that the said
documents pertains to the year of 2011-2012 only. Further,
claimant has also relied upon ID card (Ex.WW1/6) issued by the
management but the same does not mentions the issuing date and
validity period of the same.
31. No other document has been called by the claimant
from the office of the management to prove employee-employer
relationship on the alleged date of termination i.e. 01.10.2018.
32. Further, the claimant has heavily relied upon his
evidence affidavit Ex.WW1/A.
33. In Range Forest Officer Vs. S.T Hadimani (2002) 3
SCC 25, the Hon'ble Supreme Court held as under:
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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 worked for 240 days in the year proceeding his termination. Filing of an affidavit is only his own statement in his favor 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.
34. In view of the principles laid down by the Supreme Court in Range Officer V. S. T Hadimani (supra) the self serving affidavit in support of plea of employment by itself is wholly insufficient to discharge the burden of proof on the workman.
35. Hence, in the absence of any direct evidence or circumstantial evidence of incidental and ancillary nature, copy of ESI, PF and I-card are not sufficient evidence to establish the employee-employer relationship between the workman and the management.
36. On the other hand, the management has relied upon Mark WW1/M1 (colly) i.e. Form 19 to be filled by the members for claiming PF amount under Employees Provident Scheme and MW1/Mark A i.e. Form no.10-C for claiming withdrawal LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 11/13 benefits/scheme certificate under Employees Pension Scheme 1995, to prove that workman has resigned on 31.12.2013.
37. On perusal of Form 19 and Form 10-C, the reason and date of leaving of service is mentioned as "Resignation" dated 31.12.2013. During the cross-examination, the workman/WW1 has disputed his signature at point A in Form 10-C, however, he has not disputed the contents of Form 10-C. Further, no suggestions have been put by AR for the workman against the genuineness of Form 10-C.
38. In order to prove that workman has resigned on 31.12.2013, management has also summoned MW2 Mr. Rajesh Kumar, Senior Social Security Assistant, EPFO Deptt. MW2 brought the certified copy of claim status: "claim approved of claimant Sh. Bhan Singh" and exhibited the same as Ex.MW2/1 (colly pages 1 to 9). MW2 deposed that workman has withdrawn his EPF amount of Rs.36,824/- on 05.09.2014 and Employees Pension Scheme amount of Rs.16628/- on 08.09.2014.
39. After seeing the document i.e. Form 19 and Form 10- C, MW2 deposed that the claimant/workman has resigned on 31.12.2013.
40. Despite opportunity given, AR for the workman has choosen not to cross-examine MW2. Moreover, it is interesting to note that AR for workman has not put even a single suggestion to MW2 on the deposition of resignation of workman on 31.12.2013.
41. The testimony of MW2 remain consistent and unrebutted. MW2 is an independent witness of EPFO department, hence, his testimony is reliable and trustworthy.
LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 12/13
42. As discussed above, management has proved that workman has resigned on 31.12.2013.
43. Accordingly, both the issues are decided against the workman and in favour of the management. RELIEF:-Statement of claim seeking reinstatement with continuity of service and other consequential benefits including back wages is dismissed.
44. Reference stands answered in aforesaid terms.
45. Copy of award be sent to Deputy Labour Commissioner, Central District, Employment Exchange Building, PUSA Campus, New Delhi for publication.
46. Judicial file be consigned to record room. ANNOUNCED IN THE OPEN COURT DATED: 29.01.2025.
Digitally signed bySURENDER SURENDER MOHIT MOHIT SINGH Date: 2025.01.29 20:58:44 SINGH +0530 (Dr. SURENDER MOHIT SINGH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS NEW DELHI LID 561/19 BHAN SINGH VS. M/S VIVID INDIA ADVERTISING & MARKETING 13/13