Delhi District Court
S/Sh. Rajesh Kumar vs M/S Centre For Development Of ... on 30 March, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX KARKARDOOMA
COURTS, DELHI.
Ref. No. :F.24 (1946)/2002Lab./2002732
Dated :25.10.2002
I.D.No. :332/06
Unique Case ID No. 02402C0038862002
1. S/Sh. Rajesh Kumar, S/o Sh. Haresh Kumar,
2. Puran Singh, S/o Sh. Diwan Singh,
3. Upender Kumar, S/o Sh. Ayodhya Rai,
4. Satveer Dagar, S/o Sh. Ragveer Dagar
R/o 87/409, Gole Market,
New Delhi. .................Workmen
Versus
1. M/s Centre for Development of Telematics (CDot),
Room No.904, Akbar Hotel, Chanakyapuri,
New Delhi110021.
2. M/s Printshop (Contractor),
M6, Palika Bhawan, R.K. Puram,
New Delhi. ...............Managements
Date of Institution of the case : 23.11.2002
Date on which reserved for Award : 12.03.2013
Date on which Award is passed : 30.03.2013
A W A R D
The workmen S/Sh. Rajesh Kumar, Puran Singh, Upender
Kumar and Satveer Dagar, raised an industrial dispute regarding the
I.D No. 332/06 PAGE NO.1 OF 64
termination of their services by the managements of M/s Centre for
Development of Telematics (CDot) and M/s Printshop (Contractor).
The appropriate Government on being satisfied regarding the existence
of Industrial Dispute between the parties, made a reference for
adjudication. The said reference is as under.
"Whether S/Sh. Rajesh Kumar S/o Sh. Haresh Kumar,
Sh. Puran Singh S/o Sh. Diwan Singh, Sh. Upender
Kumar S/o Sh. Ayodhya Rai and Sh. Satveer Dagar
have abandoned their services or their services have been
terminated illegally and/or unjustifiably by the
management, and if so, to what sum of money as
monetary relief along with consequential benefits in
terms of existing laws/Govt.Notifications and to what
other relief are they entitled and what directions are
necessary in this respect?"
Thereafter, statement of claim was filed by the workmen.
It is stated by the workmen in their statement of claim that the
workmen have been working as a Photocopy Operators for many years
without any break in CDot since 03.08.1993 (Centre for Development
Telematics), 904, Akbar Bhawan, Chankyapuri, New Delhi for internal
and confidential documents within the premises of its offices located
in Delhi; that the workmen were engaged through contractor by CDot
I.D No. 332/06 PAGE NO.2 OF 64
in photocopy highly classified, confidential and secretive documents,
which the CDot cannot risk getting done from outside for the reason
that if these confidential documents and transparencies containing
classified circuits diagram, plain and system which CDot develops it
shall be put to a great loss in case these documents fall in the hand of
rival company; that for the purpose of service, the workmen were
provided free electricity, adequate space and PBX connection for
photocopy service and minimum three operators shall be required for
each premises; that the agreement came between CDot and contractor
M/s Printshop , M6, Palika Bhawan, R.K. Puram, New Delhi since
12.12.1994, it has been extending time to time; that the workmen were
performing their duties from 09:00 A.M to 07:00 P.M. in days a week
many times they were asked to work normally working hours and on
holidays and Sunday; that during auditing period they were made to
work day and night under the contract M/s Printshop; that on
13.08.2001 the workmen had requested the Central Labour Advisory
Board to consider the issuance of notification u/s 10 of the aforesaid
Act dated 13.08.2001; that the work performed by the
petitioners/workers were not only permanent and perennial in nature is
of sufficient during having regard to the nature of industry, trade and
business of the said industry at the CDot; that the said work in the
establishment done through regular workmen, the every fact that the
workers were working continuously since long without any break,
I.D No. 332/06 PAGE NO.3 OF 64
establish that the CDot can only employ the workmen as whole time
workers; that the nature and duration of work done by these works;
that in fact all the requirement of section 10 of the Contract Labour
(Reg. & Abo.) Act, 1970 are satisfied with regard to all the workers;
that the workmen were not provided minimum wages provided legal
facilities; that for this the workmen keeps approach time to time to
management for providing legal facilities with minimum wages; that
the workmen were working with management for a long time in CDot
without any break, the work is performed by workmen which is
incidental to and necessary for the management; that the workmen
keep raising their demand for regularization of their services and
provide all legal facilities to them; that the workmen filed writ petition,
which was disposed off; that the above said workmen added their
demand before the ALC at Kasturba Gandhi Road; that during the
proceeding all the above said workmen have been terminated on
09.01.2002 without any notice, which is illegal and unjustified.
Hence, the workmen have claimed reinstatement with full back wages,
continuity of their services and all consequential benefits.
Notices of the filing of statement of claim were sent to the
managements, who had appeared and contested the statement of claim
filed by the workmen by filing their written statements. In the written
statement filed by the management no. 1, it has taken the preliminary
objections that the claim in its present form is not maintainable against
I.D No. 332/06 PAGE NO.4 OF 64
the opposite party no.1 because no relationship of master and servant
existed between the parties; that, though in Para 10 of the claim
petition, a reference has been made to a Writ Petition, details of same
however, have been suppressed by the claimants alongwith the copy of
the order; that the claimants had approached the Hon'ble High Court of
Delhi vide Writ Petition No. 5499 of 2001, for a notification under
Section 10 (1) of the Contract Labour (Regulation & Abolition) Act,
1970 ('in short' CLA) and for absorption in the regular employment;
that, however, none of their prayers were found tenable and the Writ
Petition was disposed of vide order dated 10.09.2001 with certain
observations relying on the Judgment of Hon'ble Constitution Bench
of the Supreme Court in 2001 SCC (L&S)1121; that no notification u/s
10 (1) of CLA had been issued prohibiting engagement of contract
labour concerning the establishment of opposite party no.1 nor, the
opposite party no.1 availed the services of the contractor opposite
party no.2 towards discharge of a statutory obligation; that no cause of
action had arisen for the claimants to raise an industrial dispute against
the opposite party no.1 with whom no relationship existed; that the
dispute is bad due to misjoiner and liable to be dismissed with costs;
that the provisions of CLA have no applicability to the present set of
facts and circumstances so much so that the opposite party no.2's
contract was essentially a jobwork contract and all the claimants were
outworkers of the opposite party no.2; that the provisions of CLA
I.D No. 332/06 PAGE NO.5 OF 64
provided relationship of master & servant between the claimants and
the opposite party no.2; that under such a legal position, the claimants
cannot press for dual relationship with both the opposite parties herein;
that the termination of the contract had not severed the relationship of
master and servant between the opposite party no.2 and the claimants
and they continued to be his 'contract labour' within the meaning of
Sec.2 (1) (b) of the CLA and they are not entitled for seeking
regularization from the opposite party no.1. On merits it is stated that
the claimants were not working in the establishment of opposite party
no. 1 nor they were ever employed by the opposite party no. 1 on its
rolls; that it is denied that they worked without any break since
03.08.1993 or thereafter; that the claimants have admitted their
engagement through a contractor opposite party no. 2 for the
photocopying job; that the said contract was for one year extendable
for further period; that however, it was wrong on the part of claimants
to state that confidential documents were photocopied; that at the same
time, photocopies of documents were also got done from outside on
need based basis; that it is denied that claimants were provided free
electricity, adequate space and PBX connection for photocopy service;
that the contractual amount was fixed in the manner that the terms and
conditions of the contract could be carried out smoothly, by the
opposite party no. 2; that after having entered into a contract with
opposite party no. 2, it was his responsibility to provide adequate
I.D No. 332/06 PAGE NO.6 OF 64
manpower on the existing terms and conditions; that one of the main
terms and conditions of the contract had been that opposite party no. 2
will, at all times, adhere to the Labour laws and keep the opposite
party indemnified from the same; that on the part of the opposite party
no. 1, it has always been ensured through regular auditing that
opposite party no. 2 did not violate any law applicable to them and
their contractual workers; that it is denied that the claimants were
made to work day and night at the establishment of opposite party no.
1; that vide the said contract, the opposite party no. 2 had agreed to
ensure payment of minimum wages, PF and ESI to his contractual
workers; that admittance on the part of the claimants show that they
desired a notification under section 10 of CLA under the present
situation when no notification existed in respect of them concerning
opposite parties; that the appropriate government has not issued a
Notification under section 10 of CLA because the process and
operation is neither of perennial nature nor it calls for to employ
number of whole time workmen; that in this respect, section 10 is
referred to and in particular, Explanation thereto, where it is laid down
that the decision of the appropriate government shall be final as
regards to the question of perennial nature; that the photocopying work
is neither permanent nor of sufficient duration in the establishment of
opposite party no. 1, hence full time employees are not required for the
same; that opposite party no. 2 who, under the terms of contract, had
I.D No. 332/06 PAGE NO.7 OF 64
to adhere unconditionally to several labour enactments / Rules /
Notifications /circulars in respect of his contractual workers; that the
opposite party no. 1 had finalized the financial terms and conditions of
the contract by taking into consideration several factors including
minimum wages in force, OT rates, etc.; that the Opposite Party No.2
always ensured payment of minimum wags to its workers and the
claimants never raised any dispute in this regard with the opposite
party no.2 during the period of the contract; that the allegations are
devoid of any merit; that the claimants were not employed by the
opposite party no. 1 as alleged; that all the claimants were the out
workers of the opposite party no.2 and no relationship ever existed
between the claimants and the opposite party no.1; that the claimants
had never been denied any of the legal facilities by the opposite party
no.1; that the claimants have also not elaborately stated as to which of
the legal facilities had been denied to them by opposite party no.1; that
the opposite party no.1, hence, reserves its right to submit elaborately
if the claimants specify the alleged denied facilities, if any; that as no
relationship of master and servant existed between the claimants and
opposite party no. 1, the question of termination of their services by
opposite party no. 1 did not arise at any point of time; that no cause of
action had ever arisen against the opposite party no. 1 in view of the
aforesaid submissions of facts. All other allegations are denied.
Hence it is prayed that the claim be dismissed.
I.D No. 332/06 PAGE NO.8 OF 64
In the written statement filed by the management no.2, it
has taken the preliminary objections that the Secretary (Labour),
Government of NCT of Delhi in its order no. F.24 (1246)/2002
Lab/20002732 dated 25.10.2002 has referred the alleged industrial
dispute for adjudication before this Hon'ble Court with the following
terms and reference in the order of reference:
"Whether S/Sh. Rajesh Kumar S/o Sh. Haresh Kumar, Sh.
Puran Singh S/o Sh. Diwan Singh, Sh. Upender Kumar S/o
Sh. Ayodhya Rai and Sh. Satveer Dagar have abandoned
their services or their services have been terminated
illegally and/or unjustifiably by the management, and if so,
to what sum of money as monetary relief along with
consequential benefits in terms of existing
laws/Govt.Notifications and to what other relief are they
entitled and what directions are necessary in this respect?"
that the respondent no. 2 having a small complement of
staff, had entered into a contract with respondent no. 1/CDot for providing inhouse photocopying services w.e.f. December 1, 1994 to November 30, 1995; that the said contract was renewed from time to time by respondent no. 1 in favour of respondent no. 2; that however, the applicants under the misguidance of some persons agitated, inter alia, for their absorption in the regular service of respondent no. 1 against their respective posts with all consequential benefits and filed I.D No. 332/06 PAGE NO.9 OF 64 writ petitions before the Hon'ble High Court of Delhi; that however, both the Civil Writ Petition Nos. 5121/2001 and CWP 5499/2001 were dismissed by the Hon'ble High Court of Delhi; that as a result of the agitation on the part of the applicants for absorption in the regular service of respondent no. 1/CDot , it resulted in nonrenewal of the contract between respondent no. 2 and respondent no. 1 on the expiry of the contract after first week of January, 2002; that as a result of the illconceived and misdirected acts on the part of the applicants herein, the respondent no. 1 not only refused to renew the contract of the answering respondent after the first week of January, 2002 but also black listed the said respondent no. 2 firm for further empanelment with CDot; that consequently the action of the applicants resulted in closure of the respondent no. 2's firm M/s Printshop with effect from 30.04.2002; that illadvised action on the part of the applicants had caused heavy financial loss to respondent no. 2 leading to closing down the establishment of respondent no. 2; that since the applicants were seeking employment on regular basis with respondent no. 1 only, on relief can be given to them against respondent no. 2, which had to close down his establishment due to the wrong doings of the applicants; that the applicants were, in fact, seeking regular employment with the respondent no. 1/CDot and reinstatement in service of the said respondent with all consequential benefits; that as the applicants were solely responsible for the closure of the respondent I.D No. 332/06 PAGE NO.10 OF 64 no. 2's firm by neither reporting for work nor by responding to notices sent to them for joining back for work with the establishment of respondent no. 2, no relief whatsoever is admissible against the answering respondent; that the statement of claim is highly vague and not at all clear. On merits, it is denied that all the applicants started working in CDot since 03.08.1993; that the correct date of appointments of the applicants with the answering respondents are S. No. Name Date of Deployment 1 Rajesh Kumar August, 1993 2 Puran Singh January, 1992 3 Upender Kumar May, 1995 4 Satbir Dagar December, 1996 that though the answering respondent was required to arrange for photocopying from 09:00 A.M. to 07:00 P.M. in accordance with the terms of contract with respondent no.1/CDot, the applicants were not deployed from 09:00 A.M. to 07:00 P.M. continuously; that whenever it became necessary to require any applicant to stay beyond normal working hours or work on a holiday/Sunday, he was suitably compensated in accordance with law; that respondent no. 1/CDot is working five days a week and the applicants, therefore, used to work normally only for five days a week; that as far as answering respondent is concerned, its contract had already been terminated after the first week of January 2002, by respondent no. 1, which has also black listed the establishment of I.D No. 332/06 PAGE NO.11 OF 64 answering respondent for future empanelment in CDot because of the illadvised action on the part of the applicants by filing writ petitions before Hon'ble High Court of Delhi against the respondents; that it is denied that the applicants were not paid minimum wages or legal facilities; that it is denied that any of the applicants approached the answering respondent for providing legal facilities with minimum wages; that except for filing of two writ petitions by the applicants before the Hon'ble High Court of Delhi, the rest of the contents para under reply are wrong and denied; that it is denied that any such demand was raised by the applicants to the knowledge of the answering respondent either with the answering respondent or with any government authority; that it is denied that the services of the applicants were terminated on 09.01.2002 by the answering respondent; that after termination of contract of the answering respondent by respondent no. 1/CDot, after the first week of January, 2002, none of the applicants reported back for work with the answering respondent, nor they cared even to reply to the notices issued by the answering respondent for joining work; that since the applicants were not interested to work with the answering respondent, there was no other alternative left with the respondent no. 2 but to close down the establishment; that the applicants, therefore, abandoned their work with respondent no. 2 as they wanted to be absorbed by respondent no. 1. All other allegations are denied. Hence it is prayed I.D No. 332/06 PAGE NO.12 OF 64 that the claim be dismissed.
In rejoinders to the written statements of the managements, all the averments of the statement of claim are reaffirmed and that of the written statements of the managements are denied by the workmen.
On the pleadings of the parties vide order dated 04.05.2004 following issues were framed:.
(i)Whether there existed a relationship of employee and employer between the workman and management no.1?
(ii)As per terms of reference.
(iii)Relief.
No other issue arose or pressed and the case was adjourned for workmen evidence.
In support of their case, workmen S/Sh. Satveer Dagar, Upender Kumar, Puran Singh and Rajesh Kumar appeared as WW1 to WW4 respectively, tendered their affidavits by way of evidence Exts. WW1/A to WW4/A respectively in the workmen evidence as also relied upon the documents Exts.WW1/1 to WW1/14, in workmen evidence, on record. In their affidavits by way of evidence Exts. WW1/A to WW4/A , they have reiterated the contents of their statement of claim.
After examining WW4, the evidence on behalf of the workmen has been closed, on record.
In support of its defence, the management no. 2 has I.D No. 332/06 PAGE NO.13 OF 64 examined Sh. Amarjeet Singh, Proprietor of the management no. 2 as MW1 in its management evidence, who has tendered his affidavit by way of evidence Ex. MW1/A as also relied upon documents Exts. MW1/1 to MW1/6, on record,.
In support of its defence, the management no. 1 has examined Ms. Bala Parmeshwari K., Manager (Administration) of the management no.1 as MW2 in its management evidence, who has tendered her affidavit by way of evidence as Ex.MW2/A as also relied upon document Ex.MW2/1, on record.
After examining MW1 and MW2, evidences on behalf of the managements have been closed, on record, and the case fixed for hearing of final arguments.
However, during the pendency of the case for hearing of final arguments, an application under Order 14 Rule 5 r/w Section 151 CPC has been moved on behalf of the applicant/management no.1 for framing of an issue, on which an additional issue viz. 'Whether this court does not have the inherent jurisdiction to try and adjudicate upon the matter in issue/present dispute has been framed vide order dated 21.03.2012 passed in this regard, on record, and on the submission of the AR for applicant/management no. 1 that no evidence is required to be led on behalf of the applicant/management no. 1 on the additional issue, as framed, as abovesaid, on record, the case has again been fixed for hearing of final arguments on the date fixed. I.D No. 332/06 PAGE NO.14 OF 64
Final arguments have been heard. AR for the workmen has filed written submissions as also relied upon citations viz. (i) Oil & Natural Gas Corpn. Ltd.Appellant Vs. Engg. Mazdoor Sangh Respondent (2007) 1 Supreme Court Cases 250; (ii) State of U.P. and OthersAppellants Vs. Desh Raj Respondent (2007) 1 Supreme Court Cases 257; (iii) Secretary, Haryana State Electricity Board Appellant Vs. Suresh and Others etc. Respondent 1999 LAB I.C. 1323; (iv) Gujarat Electricity Board, Ukai Petitioner Vs. Hind Mazdoor Sabha Respondent 1991 LLR 572 (Gujarat High Court); (v) Jaswant Sugar Mills Ltd., MeerutAppellant Vs. Shri Badri Prasad and Others Respondents AIR 1967 Supreme Court 513; (vi) Indian Petrochemicals Corporation Ltd. and Another Appellants Vs. Shramik Sena and Others Respondents AIR 1999 Supreme Court 2577 and (vii) U.P. State Electricity Board Petitioner Vs. Pooran Chandra Pandey and Others Respondents Civil Appeal No. 3765 of 2001 decided on October 9, 2007.
AR for the management no. 1 has also filed written submissions as also relied upon citations viz. (i) Standing Conference of Public EnterprisesPetitioner Vs. Government of NCT of Delhi, Delhi Respondent 2007 (93) DRJ 616; (ii) Hindustan Aeronautics Ltd. and another Vs. Hindustan Aero Canteen K. Sangh and Others 2002 (95) FLR 1178; (iii) Indira Gandhi Airport Tdi Karamchari Union Vs. Union of India & Anr. 2009 X AD (DELHI) 749; (iv) I.D No. 332/06 PAGE NO.15 OF 64 Bombay Telephone Canteen Employees Association Vs. Mahanagar Telephone Nigam Ltd., Bombay and Others 1989 (58) FLR 161; (v) Ramesh Kumar and Ors. Vs. Union of India and Ors. 2006 IX AD (DELHI) 758; (vi) Institute of Rural Management Vs. NDDB Employees Union Through Secretary of NDDB Empl and Ors. 2011 Law Suit (Guj) 227; (vii) Om Prakash Vs. Delhi Transport Corporation - Law Pack, Delhi High Court; (viii) Management of Power Grid Corporation of India Ltd. Petitioner Vs. Presiding Officer & Ors - Respondents 137 (2007) Delhi Law Times 419; (ix) General Manager, (OSD), Bengal Nagpur Cotton Mills Rajnandgaon Appellant Vs. Bharat Lal and Another Respondents (2011) 1 Supreme Court Cases 635; (x) Dr. Sushil Kumar Tripathi Petitioner Vs. Jagadguru Ram Bhadracharya Handicapped University, Chitrakoot and others Respondents 2009 (2) AISLJ 139; (xi) Indian Drugs & Pharmaceuticals Ltd. Appellant Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. Respondent (2007) 1 Supreme Court Cases 408; (xii) Divisional Manager, Aravali Golf Club and Another Appellants Vs. Chander Hass and AnotherRespondents (2008) 1 Supreme Court Cases 683; (xiii) Secretary, State of Karnataka and OthersAppellants Vs. Umadevi (3) and OthersRespondents 2006 Supreme Court Cases (L & S) 753; (xiv) Mohd. Ashif and Others Appellants Vs. State of Bihar and Others Respondents (2010) 2 Supreme Court Cases (L & S) 58; (xv) Punjab Water Supply & I.D No. 332/06 PAGE NO.16 OF 64 Sewerage BoardAppellant Vs. Ranjodh Singh and Others Respondents (2007) 2 Supreme Court Cases 491; (xvi) Senior Superintendent, Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Ors. AIR 2010 Supreme Court 2140; (xvii) Jagbir Singh Vs. Haryana State Agriculture Marketing Board & Anr. AIR 2009 Supreme Court 3004; (xviii) Madhyamik Shiksha Parishad, U.P. Appellant Vs. Anil Kumar Mishra and Others Respondents (2005) 5 Supreme Court Cases 122; (xix) Dhampur Sugar Mills Ltd.Appellant Vs. Bhola SinghRespondent (2005) 2 Supreme Court Cases 470; (xx) Haldia Refinery Canteen Employees Union and OthersAppellants Vs. M/s Indian Oil Corporation Ltd. and OthersRespondents AIR 2005 Supreme Court 2412; (xxi) Municipal Corporation of Greater MumbaiAppellant Vs. K.V. Shramik Sangh and OthersRespondents (2002) 4 Supreme Court Cases 609; (xxii) Dena Nath and Others Appellants Vs. National Fertilisers Ltd. and OthersRespondents AIR 1992 Supreme Court 457; (xxiii) International Airport Authority of IndiaAppellant Vs. International Air Cargo Workers' Union and AnotherRespondents (2009) 13 Supreme Court Cases 374; (xxiv) Bombay Hospital Trust and Anr Vs. Dr. Shailesh Hathi and Anr. 2006 LAB I.C. 3270; (xxv) NTPC, Badarpur Thermal Power Station (BTPS) Petitioner Vs. Umesh Kumar MishraRespondent 167 (2010) Delhi Law Times 625; (xxvi) Central Bank of India Plaintiff Vs. Tarseema Compress Wood Manufacturing Company and Others I.D No. 332/06 PAGE NO.17 OF 64 Defendants AIR 1997 Bombay 225; (xxvii) Management of the Advance Insurance Co. Ltd. Petitioner Vs. Shri Gurudasmal Supdt. Of police and OthersRespondents AIR 1969 Delhi 330 ; (xxviii) M/s North Bihar Sugar Mills Ltd. Petitioners Vs. The State of Bihar and OthersRespondents 1980 LAB I.C. 669; (xxix) The workmen represented by the Anand Bazar Group of Publications Employees' Union Petitioner Vs. Anand Bazar Patrika Ltd. and Others Respondents 1999 LAB.I.C. 3796 (xxx) Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors AIR 2010 Supreme Court 475 and (xxxi) C.M.D., Singareni Collieries Co.Ltd. Appellant Vs. Kota Posham & Ors Respondents 1990 LAB I.C. 405.
Written submissions have also been filed on behalf of the management no. 2, which has also relied upon citations viz. (i) Municipal Council, SujanpurAppellant Vs. Surinder Kumar Respondent (2006) 5 Supreme Court Cases 173 and (ii) Municipal Corporation of Greater MumbaiAppellant Vs. K.V. Shramik Sangh and Others Respondents (2002) 4 Supreme Court Cases 609.
My findings issuewise are as under: Additional Issue.
It is seen from the record that an additional issue in respect of the jurisdiction of this Court to try and adjudicate upon the instant matter/dispute between the parties has been framed, on record, on the application moved on behalf of the applicant/management no.1 in this I.D No. 332/06 PAGE NO.18 OF 64 regard, on record, on the submission that in view of the objection taken on behalf of the respondent/management no. 1 in its written submissions to the reference of the subject dispute between the parties by the Government of NCT of Delhi to this Hon'ble Court for adjudication and disposal on the ground of the respondent/management no. 1 being a Central Government organization by virtue of the governing council consisting of Minister of Communication, Deputy Minister Electronics, Cabinet Secretary, Cabinet Secretariat, Secretary Finance, Secretary Electronics vide clause 5 of the Memorandum of Association of the respondent/management no. 1 and accordingly, the same being not maintainable in law on the part of the Government of NCT of Delhi in this court, it being not the appropriate Government in respect of the respondent/management no. 1, the Central Government being the appropriate Government in its respect.
AR for the workmen, has argued to the contrary and submits that the instant objection has not been taken by the respondent/management no. 1 in its written statement to the statement of claim of the workmen at the first instance whereafter rejoinder has been filed on behalf of the workmen to the same, issues framed and the evidences of the parties led on the issues framed at the first instance vide order dated 04.05.2004 passed in this regard, on record.
It is further the submission of the AR for the workmen that I.D No. 332/06 PAGE NO.19 OF 64 thereafter, evidences have been led on behalf of the parties on the substantive issues as framed qua the respective contentions of the parties in the instant matter by way of the pleadings of the parties vide their respective statement of claim, written statements, rejoinder, documents, if any, etc. filed on their part, on record, forming subject matter of the instant dispute between the parties referred to this Hon'ble Court by the appropriate Government vide the instant reference on the terms, as above said, on merits of their respective case/contention/claim in the same, in which proceedings the AR for the respondent/management no. 1 had participated by way of cross examination of the workman witnesses appearing in respect of their depositions qua their statement of claim, on behalf of the respondent/management no. 1 with no question/objection whatsoever having been taken/put to the said workmen witnesses on his part in respect of the instant objection of the respondent/management no. 1 vide the instant issue as to the maintainability of the instant reference/ statement of claim of the workmen in the same and accordingly, the instant issue/objection is not proved on the part of the respondent/management no. 1, even though framed, on record.
It is further the submission of the AR for the workmen that no evidence has been led on the part of the respondent/management no. 1 in support/ proving of the instant issue framed on the application moved on behalf of the respondent/management no. 1, as above said, I.D No. 332/06 PAGE NO.20 OF 64 to the effect that the respondent/management no. 1 is a Central Government organization being financed/funded and controlled by the Central Government as alleged by way of proving of any document on the part of the respondent/management no. 1 in its evidence in this regard, on record, and on the contrary it has been submitted on behalf of the respondent/management no.1 vide order dated 21.03.2012 pursuant to framing of the instant issue, on its application in this regard, as above said, on record, that no evidence is required to be led on the additional issue as framed, on record and accordingly, it cannot be said/contended by any stretch of imagination that the respondent/management no. 1 has proved its contention, as above said, on the instant issue by way of any cogent, relevant and admissible evidence led on its behalf in this regard, on record and accordingly, the respondent/management no. 1 has not discharged the onus, which was upon it to prove the instant issue.
I find force in the submission of the AR for the workmen, as above said. It is seen from the record that no evidence has been led on the part of the respondent/management no. 1 in support of its contention on the instant issue, the onus of proving of which was admittedly upon the respondent/management no. 1, so much so that even the alleged Memorandum of Association of the respondent/management no. 1 allegedly in this regard have not been proved on the part of the respondent/management no. 1 in its I.D No. 332/06 PAGE NO.21 OF 64 management evidence, on record.
I further find that the managements/respondents have cross examined the relevant workmen witnesses in respect of their depositions on the statement of claim against the respondents/managements including the respondent/management no. 1 without any objection to their statement of claim in the instant reference to this court. Though admittedly a legal objection as to the jurisdiction of the court to try and adjudicate upon the matter in issue can be taken at any stage of the proceedings by way of an additional issue as has been done in the instant case, however, the same is required to be proved by leading of cogent and admissible evidence on the part of the party raising the same in support of its contention on the same, on record, which I find from the record has not been discharged on the part of the respondent/management no. 1 in respect of the instant issue, the onus of proving of which was admittedly upon the respondent/management no. 1 by leading of cogent, admissible and relevant evidence in support of its contention on the instant issue, to the effect that the respondent/management no. 1 was infact a Central Government organization necessitating the Central Government to be the appropriate authority/Government in respect of the instant dispute.
I further find vide the provisions of citation viz. MCD Vs. Mahavir, 2002 (95) FLR 974 of Division Bench of the Hon'ble High Court of Delhi relied upon by the Hon'ble High Court of Delhi vide its I.D No. 332/06 PAGE NO.22 OF 64 judgment dated January 09, 2013 passed in Writ Petition (C) No. 137/2009 titled The Management of LRS Institute Petitioner Vs. Devender Kumar Respondent wherein it has been held: "6. The question of competence of the Government of NCT of Delhi in making a reference of an Industrial Dispute in a case where the industry is under the control of Central Government was decided with reference to Rule 2 (f) of Industrial Disputes (Central) Rules, 1957 in MCD Vs. Mahavir, 2002 (95) FLR 974 by the Division Bench of this Court, wherein it was held:
"10. Section 38 of the said Act provides for rule making power. In exercise of the said power the Central Government has framed rules known as Industrial Disputes (Central) Rules which came into effect from March 10, 1957. These rules apply to Union Territories and States in relation to industries situated therein in respect whereof the Central Government may be the Appropriate Government. Rule 2 appears with the expression "in these rules".
Rule 2 (f) of the said Rules reads thus:
"(f) in relation to an industrial dispute in a Union territory, for which the appropriate Government is the Central Government, reference to the Central Government or the Government of India shall be construed as a reference to the Chief Labour Commissioner (Central), Regional Labour Commissioner (Central) and the Assistant Labour Commissioner (Central) shall be construed as reference to the appropriate authority, appointed in that behalf by the Administrator of the territory;"
11. By reason of the said rule the power which can be exercised by the Central Government has been I.D No. 332/06 PAGE NO.23 OF 64 delegated to the Lt. Governor. The Government of National Capital Territory of Delhi has appointed conciliation officers. An officer appointed by Administration as conciliation officer may also deal with such industrial disputes where for the Central Government would be the appropriate Government. It is also not in dispute that the Delhi Administration has constituted the Labour Courts and Industrial Tribunals.
Section 4 of the Act authorises the Central Government to appoint Conciliation Officers. In the instant case virus of Rule 2 (f) of the Rules is not in question. Rules, as is well known, when validly become part of the Act. By reason of the said Rules and Central Government only intended to create a machinery for the purpose of enforcing the provisions of the Act having regard to definition of the Central Government as contained in Section 3 (8) of the General Clauses Act.
18. Section 2 (f) of the Central Rules must be construed to be a valid piece of legislation and thus, it can be inferred that thereby the only person authorised to act has been mentioned and no power as such has been delegated.
Rule (f) also covers subject matters envisaged under Section 10 (1) of the Industrial Disputes Act. In Goa Sampling case (supra), upon which counsel has relied upon was held that the administrator is not a Government and a UT does not satisfy the definition of State Government and as such the Central Government was the appropriate Government to refer the disputes"
7. Thus the effect of the judgment of this Court in MCD Vs. Mahavir (supra) read in consonance with Rule 2 (f) of the I.D No. 332/06 PAGE NO.24 OF 64 Industrial Disputes (Central) Rules 1957 is that even if strictly speaking the appropriate government to make reference of an industrial dispute is a Central Government, a reference can be made by the administrator of Union Territory or his delegated authority. Hence, in a case where reference was made by Government of NCT of Delhi .......... such a reference cannot be said to be a reference which was not made by an appropriate authority."
In view of my observations and findings on the instant issue, as above, the instant issue is decided against the respondent/management no. 1 and in favour of the workmen. Issue no. 1.
It is seen from the record that the workmen S/Sh. Satveer Dagar, Upender Kumar, Puran Singh and Rajesh Kumar have appeared in the workmen evidence as WW1, WW2, WW3 and WW4 respectively, tendered their affidavits by way of evidence Exts. WW1/A, WW2/A, WW3/A and WW4/A respectively as also relied upon documents Exts. WW1/1 to WW1/14, on record. In their affidavits by way of evidence Exts. WW1/A, WW2/A, WW3/A and WW4/A they have reiterated the contents of their statement of claim interalia that they were working with the management no. 1 CDot since 1996, 1994, 1993 and 1993 respectively and performing their duties as Photo Copy Operators each; that the workmen were engaged by the management no. 1 CDot through contractor who was changed from time to time but the workmen were performing their duties in the I.D No. 332/06 PAGE NO.25 OF 64 premises of the management no. 1 since 1996, 1994, 1993 and 1993 respectively; that the workmen did the work of photocopy, which is highly classified, confidential and recreative belonging to circuits diagram, plan and system which the management no. 1 CDot develops; that the workmen were provided free electricity, adequate space and PBX connection for photocopy service and minimum three operators were required for each premises as per agreement dated 12.12.1994; that the workmen performed their duty from 09:00 A.M to 07:00 P.M and did the overtime also, many times they were asked to work normally working hours and on holidays and Sunday as per agreement; that the last drawn monthly salaries of the workmen were Rs. 2,950/, Rs. 2,400/, Rs. 2,400/ and Rs. 2,950/ respectively but the management did not provide PF, ESI and minimum wages as per Minimum Wages Act, as per their agreement, which is against law; that the workmen raised their demand before the management but the management ignored their legal demand; that then they filed case writ petition no. 5276/2001 before the Hon'ble High Court of Delhi, which was disposed off with liberty to file the case before the appropriate Tribunal; that the workmen filed their case before Assistant Labour Commissioner, Kasturba Gandhi Marg, New Delhi; that during the pendency of the proceedings before ALC, their services were terminated by the management on 09.01.2002 without any notice, which was illegal; that the workmen personally appeared before the I.D No. 332/06 PAGE NO.26 OF 64 management for rejoining on duty but the management refused to re engage them on the same; that the workmen are unemployed since the date of termination on 09.01.2002 inspite of tried to get job; that the workmen gave representation before Central Labour Advisory Board to issue notification under section 10 of the Contract Labour ( Regulation & Abolition) Act, 1970.
Ex. WW1/1 being copy of agreement dated 02.02.2000 between the management no. 1 and management no. 2; Ex. WW1/2 being copy of rates for photocopying charges of the management no. 1; Ex. WW1/3 being copy of representation dated 13.08.2002 of the workmen to the Secretary, Government of India/Bharat Sarkar, Ministry of Labour/Shram Mantralaya, Jaisalmer House, Man Singh Road, New Delhi110011 and Central Advisory Contract Labour Board, Government of India, Ministry of Labour, Jaisalmer House, Man Singh Road, New Delhi110011 under the Contract Labour (Regulation & Abolition) Act; Ex. WW1/4 being copy of order dated 27.08.2001 of the Hon'ble High Court of Delhi in writ petition no. 5121/2001 of the workmen against the respondents/managements and another; Ex. WW1/5 being copy of details of workers; Ex. WW1/6 being copies of temporary passes of the Government of India, Ministry of Home Affairs in respect of the S/Sh.Jagdish Singh, Satvir Singh Dagar and Vinod Kumar, photocopiers; Ex. WW1/7 being copy of a cheque bearing no. 472918 dated 09.11.2001 of the management no. 2 I.D No. 332/06 PAGE NO.27 OF 64 in the name of Sh. Rajesh Kumar for an amount of Rs. 11,350/ drawn on Union Bank of India, Branch Moti Bagh (1), New Delhi110066 as also endorsement that the said amount has been given to the said workman for disbursement of salary of staff and other expenditure at CDot, Pusa Road, New Delhi as under (as mentioned therein) vide the said cheque of the management no. 2; Ex. WW1/8 being copy of similar endorsement in respect of cheque bearing no. 472926 dated 07.12.2001 of the management no. 2 for an amount of Rs. 10,950/ in the name of the workman Sh. Rajesh Kumar; Ex. WW1/9 being copy of internal letter dated August 21, 2001 of the management no. 1 in respect of renewal/ notification for fresh tenders for the work of hire and maintenance of plants and photocopying services with the management no. 1; Ex. WW1/10 being copy of certificate dated March 20, 1997 of the management no. 1 in respect of workman Sh. Puran Singh Bisht; Ex. WW1/11 being copy of certificate dated January 14, 1998 of the management no. 1 in respect of workman Sh. Rajesh Kumar; Ex. WW1/12 being copy of certificate dated August 29, 2001 of the management no. 1 in respect of one Sh. Vinod Kumar; Ex. WW1/13 being copy of certificate dated January 12, 1998 of the management no. 1 in respect of workman Sh. Upendra Kumar and Ex. WW1/14 being copy of certificate dated 28.01.1999 of the management no. 1 in respect of workman Sh. Satvir Singh Dagar.
These witnesses WW1, WW2, WW3 and WW4 have been I.D No. 332/06 PAGE NO.28 OF 64 cross examined at length on behalf of the management no. 1 to the effect interalia that they were not aware as to between whom the agreement was signed; that they were simply taken on job; that in the writ petition no. 5276/01, it was their prayer to provide them employment as their services were terminated illegally without notice and their services be confirmed; that they did not remember the date when they went for rejoining the duty; that the workman WW1 was 12th passed, WW2 was 10th failed, WW3 was 10th passed and WW4 was 10th passed; that the WW1 to WW4 were married and having two children each; that they were staying in their father's/own house; that they were unemployed and had no personal income; that they did not remember the date of representation made to Central Labour Advisory Board; that it was wrong to suggest that they were deposing falsely.
WW1, WW2, WW3 and WW4 have also been cross examined at length on behalf of the management no. 2, in which WW1 has deposed that he was 35 years old; that he joined the services in January, 1996; that his services were terminated in CDot; that he did not write any letter or give any notice to Sh. Amarjeet Singh of Print Shop; that he received one letter dated 14.02.2002 Ex. WW1/M1 from Print Shop for joining the services; that he did not give any written reply to the said letter. Vol. However, he personally went to the management; that it was correct that he had filed a writ petition in Delhi High Court; that it was correct that they prayed for service in C I.D No. 332/06 PAGE NO.29 OF 64 Dot; that it was correct that their authorized representative informed the Assistant Labour Commissioner that they want to work only with CDot; that he did not know whether the contract of Print Shop had been terminated by the CDot; that it was correct that CDot was working for five days a week only. Vol. However, they were called for work on Saturday and sometimes on Sunday also; that they were issued a slip for work on Saturday and Sunday and he can file the copy of the same; that he was not doing any work; that he was married; that he had two children; that he was maintaining himself with the pension of his father; that the pension of his father was about Rs. 3,000/ to Rs. 4,000/; that he had applied for the job; that he can produce the copy of application sent by him for jobs; that it was wrong to suggest that his services were not terminated by Sh. Amarjeet Singh of Print Shop; hat it was wrong to suggest that he was deposing falsely.
In cross examination on behalf of the management no. 2, WW2 has deposed that he was 32 years old; that he had been working from 1996 with the management; that he did not recollect the date of his termination; that he was terminated from CDot; that they were informed by Sh. Amarjeet Singh that his work had been terminated by CDot and he was removing his work/machines from CDot; that it was correct that they filed a writ petition in Delhi High Court for absorption in CDot; that it was correct that he received letter dated 14.02.2002 from Sh. Amarjeet Singh, which is Ex. WW2/M1; that it I.D No. 332/06 PAGE NO.30 OF 64 was correct that he did not reply to the said letter in writing. Vol. However, he went to the shop of Sh. Amarjeet Singh to take back him on duty but he did not take him back on duty; that it was wrong to suggest that he did not go to Sh. Amarjeet Singh; that it was wrong to suggest that CDot was working in 5 days a week; that he was not doing any work; that he had not applied for job anywhere; that his father was maintaining his family;that he did not know if any statement was given by his authorized representative that he wanted to do work in CDot in the Delhi High Court; that it was wrong to suggest that he was deposing falsely.
In cross examination on behalf of the management no. 2, WW3 has deposed that he was 36 years old; that he had been working from 1996 with the management; that he was not issued any appointment letter; that he never made complaint to either the management or any other government authority regarding non issuance of appointment letter to him; that it was wrong to suggest that he was not working from 09:00 A.M to 07:00 P.M daily; that it was wrong to suggest that CDot was working for 5 days in a week; that he was terminated from CDot; that he was not issued any slip for entry on Saturdays and Sundays but he used to make entry in a register maintained by CDot; that he had filed a copy of the agreement mentioned in para no. 5 of his affidavit Ex. WW3/A; that he did not make any complaint to any authority for non grant of PF, ESI and I.D No. 332/06 PAGE NO.31 OF 64 minimum wages to them; that he had filed a copy of his demand notice with his affidavit; that he did not know if any writ petition was filed in the Delhi High Court; that he received the letter dated 14.02.2002 Ex. WW3/M1 from the management; that he did not reply the said letter in writing, but he personally met Sh. Amarjeet Singh; that it was wrong to suggest that his services were not terminated by Sh. Amarjeet Singh; that he was unemployed at present; that he had applied for job; that he can produce the copy of his application made for job; that he was dependent on his mother who was a pensioner; that it was wrong to suggest that he was deposing falsely.
In cross examination on behalf of the management no. 2, WW4 has deposed that it was wrong to suggest that he never reported for work at Print Shop i.e. the management no. 2 after January 2002; that it was correct that the contract was terminated by CDot, the management no. 1 on 09.01.2002; that it was correct that he received letter dated 17.01.2002 which is Ex. WW1/M1; that it was correct that he had received letter dated 14.02.2002 which is Ex. WW1/M2; that it was correct that he had not replied either of the above letters in writing; that it was correct that he had filed the present Industrial Dispute for reinstatement in management no. 1 only; that it was correct that he had filed a writ petition in the Hon'ble High Court for regularisation in the service of the management no. 1 i.e. CDot. Vol. In the said writ the other management was also made a party; that he I.D No. 332/06 PAGE NO.32 OF 64 had attended the conciliation proceedings held before Sh. S.K.Sharma; that it was correct that in the conciliation proceedings his authorized representative told the conciliation officer that he was willing to work with the management of CDot; that he was not aware whether the employment of contract labour has been prohibited or not; that it was wrong to suggest that while working with CDot, they used to work for 5 days in a week; that Mr. Vivek Tripathi, the Admn. Manager CDot had informed him that his services had been terminated; that he did not mention this fact in his statement of claim; that it was wrong to suggest that even after receiving the letters dated 17.01.2002 and 14.02.2002, he never reported for duty with management no. 2; that he had applied at various places for job after his termination; that he can produce the applications for job; that he did not remember the name of the establishments where he applied for job; that he was married and having two children; that he had no idea about his monthly expenses; that his monthly expenses were incurred by his father; that it was wrong to suggest that he was not telling his expenditure as he was gainfully employed; that it was wrong to suggest that he was deposing falsely or that he had filed false affidavit.
Thereafter, workmen evidence has been closed, on record. In support of its defence, the management no. 2 has led the evidence of Sh. Amarjeet Singh, sole proprietor of the management no. 2 as MW1 in its management evidence, who has tendered his I.D No. 332/06 PAGE NO.33 OF 64 affidavit by way of evidence Ex. MW1/A as also relied upon documents Exts. MW1/1 to MW1/6, on record. In his affidavit by way of evidence Ex. MW1/A he has deposed that he was the sole proprietor of the respondent no. 2 ie. M/s Print Shop (since closed) and, therefore, well informed about the facts of the instant matter and competent to affirm and file the present affidavit; that he was running the above work with a small complement of employees and had entered into an agreement with respondent no. 1 i.e. CDot for providing inhouse photocopying services w.e.f. 01.12.1994 to 30.11.1995; that the contract was renewed from time to time till first week of January, 2002; that the claimants herein, who have sought relief against the respondent no. 1 i.e. CDot had in fact first filed Civil Writ Petitions before Delhi High Court bearing No. 5121/01 and CWP 5499/2001 for absorption in the regular services of respondent no. 1 i.e. CDot, which were dismissed by Hon'ble High Court of Delhi; that as a result of the above writ petitions filed by the claimants/workmen in Delhi High Court, the respondent no. 1 not only terminated the agreement with the respondent no. 2 but also black listed it resulting in loss of business and closure of the respondent no. 2, leading to serious financial loss to him; that he wrote letters to all the claimants on 17.01.2002 and 14.02.2002 as they were not reporting for duty; that however, none of the claimants replied to the same; that this ill advised action on the part of the claimants led to closure of the I.D No. 332/06 PAGE NO.34 OF 64 management no. 2 w.e.f. 30.04.2002; that as the claimants approached the Hon'ble High Court for absorption and regularization in the service of respondent no. 1, they were solely responsible for closure of the respondent no. 2, they were therefore, not entitled to any relief against the respondent no. 2; that during his cross examination WW1 Sh. Satveer Dagar has admitted that he did not write any letter or give any notice to Sh. Amarjeet Singh of Print Shop. He received one letter dated 14.02.2002 Ex. WW1/M1 from Print Shop for joining the services. He did not reply to the said letter. That similarly WW2, WW3 and WW4 have also admitted that they had received letters from the MW1, but did not reply to the same; that the WW4 during his cross examination has also stated that it was correct that the contract was terminated by CDot., the management no. 1 on 09.01.2002, it was correct that he received letter dated 17.01.2002 which is Ex. WW4/M1, it was correct that he had received letter dated 14.02.2002 which is Ex. WW4/M2, it was correct that he had filed the present industrial dispute for reinstatement in management no. 1 only, it was correct that he had filed a writ petition in the Hon'ble High Court for regularization in the service of the management no. 1 i.e. CDot.........., he had attended the conciliation proceedings, his AR told the conciliation officer that he was willing to work with the management of CDot............., Mr. Vivek Tripathi, the Admn. Manager CDot had informed him that his services had been terminated, he did not mention I.D No. 332/06 PAGE NO.35 OF 64 this fact in his statement of claim; that in view of the above, the claimants have not raised any demand against respondent no. 2 and nor prayed for any relief against respondent no. 2; that therefore, the present purported industrial dispute raised against the respondent no. 2 is not sustainable and maintainable in law; that the claimants have themselves stated that they were terminated by respondent no. 1, therefore, the question of terminating the services of the claimants by respondent no.2 does not arise at all; that the claimants never reported for duty after receiving the letters from the respondent no. 2 nor replied to the same; that in view of the para no. 6 of the statement of claim, the above purported dispute raised by the claimant against the respondent no. 2 is frivolous, vexatious and a clear case of abuse of judicial process; that the above reference made by the Government of NCT of Delhi to this Hon'ble Court qua respondent no. 2 is, therefore, also bad in law and liable to be dismissed; that the respondent no. 2 has already filed its detailed written statement traversing and denying the various misconceived and wrong averments and statements made by the claimants.
Exts. MW1/1 to MW1/3 are copies of letters dated 17.01.2002 of the management no. 2 to the workmen S/Sh. Upendra Kumar, Puran Singh Bisht and Satvir Singh respectively; Ex. MW1/4 being copy of the UPC; Exts. MW1/5 and MW1/6 being copies of certificates dated 12.02.2004 and 13.02.2004 of Union Bank of India, I.D No. 332/06 PAGE NO.36 OF 64 Moti Bagh Branch, Palika Bhawan, Opp. Hyatt Regency Hotel, New Delhi110066 and M/s Ashoo Mittal & Associates, Chartered Accountant in respect of the closure of the management no. 2 on 11.02.2004/01.04.2003 respectively; Ex. WW4/M1 being copy of letter dated 17.01.2002 of the management no. 2 to the workman Sh. Rajesh Kumar; Exts. WW1/M1, WW2/M1, WW3/M1, WW4/M2 being copies of letters dated 14.02.2002 of the management no. 2 to the workmen S/Sh. Satvir Singh, Upendra Kumar, Puran Singh Bisht and Rajesh Kumar respectively.
This witness has been cross examined at length on behalf of the workmen in management evidence, in which he has deposed that he was working with management no. 1 as contractor since December 1994; Vol. It was contract for in house photocopying job; that his contract continued till January, 2002; that initially his contract was for the period of one year and subsequently, it was extended for one more year and thereafter, a fresh tender was floated in Newspaper; that on his contract, there were seven workers were engaged; that all of them were working with the Print Shop; that the photocopy work was carried on at two places i.e. CDot Pusa Road and CAkbar Bhawan; that the photocopy of the agreement was given to him; that he had not placed on record the copies of the agreement, however, the copy of last agreement is placed, on record; that M/s Print Shop was a sole proprietorship firm and he was the proprietor of the same; that he did I.D No. 332/06 PAGE NO.37 OF 64 not have any registration etc. with regard to the proprietorship etc. that he did not have any contract licence; that he was not aware about any legal demands raised by the claimants; that the photocopies have been done in CDot i.e management no. 1 for management no. 1 only; that Ex. WW1/7 was signed by him at point A; that it was wrong to suggest that he was not working as a contractor in management no. 1; that it was wrong to suggest that the workmen were not his employees; that it was wrong to suggest that he had filed a false affidavit or that he was deposing falsely. Thereafter, evidence on behalf of the management no. 2 has been closed, on record.
The management no. 1 has led the evidence of MW Ms. Bala Parmeshwari K., Manager (Administration) of the management no.1 as MW2 in its management evidence, who has tendered her affidavit by way of evidence as Ex.MW2/A as also relied upon document Ex.MW2/1, on record. In her affidavit by way of evidence Ex. MW2/A she has reiterated the contents of written statement of the management no. 1 and has deposed that she was working as Manager (Administration) of the opposite party no. 1 and conversant with the facts of the case and authorized to swear the affidavit Ex. MW2/A; that the claimants were never employed by the opposite party no. 1; that no appointment letter was issued to any claimant by the opposite party no. 1, therefore, there was no relationship of Master Servant between the parties; that vide Ex. D1, opposite party no. 2 M/s Printshop was I.D No. 332/06 PAGE NO.38 OF 64 given a contract initially for a period of one year for photocopying job; that vide Ex. D1, the contractor was liable to make payment of minimum wages, P.F, ESI and other statutory benefits to its contractual workers including the claimants; that the contract was terminable by either party by giving one month's notice or even earlier; that the appropriate Government did not issue a notification prohibiting engagement of contract labour concerning the establishment of opposite party no. 1; that Ex. D1 was a job work contract and all the claimants were outworkers of the opposite party no. 2; that after having entered into a contract with opposite party no.2, it was the responsibility of the contractor to provide adequate manpower on his terms and conditions; that one of the main terms and conditions of the contract was that opposite party no. 2 will, at all times, adhere to the Labour Laws and keep the opposite party no.1 indemnified from the same; that as no relationship of master and servant existed between the claimants and opposite party no. 1, the question of termination of claimants' services by opposite party no. 1 did not arise at all; that no cause of action had arisen against the opposite party no. 1 in view of no relationship between the parties; that the opposite party no. 1 is an organization of Government of India and a regular process of recruitment or appointment is resorted to as per the policy for public employment; that the recruitment policy of the organization does not envisage any employment outside the scheme I.D No. 332/06 PAGE NO.39 OF 64 and without following the requirements set down therein; that in the case of the claimants, no due process of selection took place as their engagement by the opposite party no. 2 was purely due to the contract with opposite party no. 2; that the claimants cannot be, therefore, given any relief of employment in the establishment of the opposite party no. 1; that the terms of reference,may, therefore, be decided against the claimants qua the opposite party no. 1 as they are not entitled to any relief whatsoever, from the opposite party no. 1.
Ex. MW2/1 being copy of agreement dated 02.02.2000 entered into between the management no. 1 and management no. 2 for entrusting the photocopying job of its internal documents within the premises of its offices located in New Delhi as per the terms and conditions as mentioned thereunder for a period of one year w.e.f. 16.11.1999 renewable for one more year on the same terms and conditions on the basis of the services rendered by the management no. 2/Contractor.
It is seen from the same that apart from supply of manpower on the part of the management no. 2 to the management no. 1, the management no. 2 contractor was also required to supply/provide adequate machines for smooth operation of photocopying facilities at the premises of the management no. 1 as mentioned therein viz. office of the management no. 1 located at Akbar Bhawan & Samrat Hotel Chankya Puri, 39 Pusa Road, 11/6B I.D No. 332/06 PAGE NO.40 OF 64 Pusa Road, and Captive Exchange, Delhi Cantt.
This witness has been cross examined at length on behalf of the workmen in management evidence, in which she has deposed that she was working with the management no. 1 since 1985; that initially she was appointed as Secretary with the management; that she was not carrying her appointment letter, however, she could produce the same, if directed; that the management no. 1 was a registered society involved in research and development; that she did not file the bye laws of the management no. 1 with the file; that she could bring the same,if required; that it was registered in the year 1984 as far as she remembers; that there were 7/8 workers working in the society; that recruitment of staff members was done through campus recruitment through open advertisement through deputation etc.; that Print shop was an agency who was providing photocopying service for management no. 1; that they were given job works through call of open tenders; that the management no. 2 was working with management no. 1 for about 1994 onwards and it worked till 2002; that the last contract with management no. 1 was upto 2002; that she did not remember the date and month; that M/s Print Shop was a contractor; that she did not remember about validity of licence of management no. 2; that she also did not remember whether she had seen the licence of the same; that it was correct that they continuously used to provide work to management no. 2; that Ex. WW1/10 to Ex. I.D No. 332/06 PAGE NO.41 OF 64 WW1/14 belongs to management no. 1; that Ex. WW1/8 and Ex. WW1/7 do not pertain to management no. 1; that she did not know till how long the claimants worked with management no. 1; that she did not know whether the claimants were working with management no. 1 or not; that she could not admit or deny the suggestion that the claimants were working with management no. 1; that it was wrong to suggest that she was deposing falsely or that she had filed a false affidavit.
Thereafter, evidence on behalf of management no.1 has been closed, on record.
It is seen from the record that though the workmen WW1 to WW4 have alleged themselves to be the employees of the management no. 1 on the allegations that they were working as photocopy operators for many years without any break with management no. 1 CDot since 03.08.1993 (Centre for Development Telematics), 904, Akbar Bhawan, Chankyapuri, New Delhi for internal and confidential documents within the premises of its offices located in Delhi through contractor, management no. 2, who was changed from time to time but the workmen were performing their duties in the premises of the management no. 1 since 1993; that they were performing their duties from 09:00 A.M to 07:00 P.M. on each working days as also on holidays and Sunday; that as per agreement the last drawn salary of the workmen was Rs. 2,950/ / Rs. 2,400/ per month but the management I.D No. 332/06 PAGE NO.42 OF 64 did not provide PF, ESI and minimum wages as per Minimum Wages Act, as per their agreement, which was against law; that the workmen have raised their demand before the management but the management ignored their legal demands and then had filed case writ petition no. 5121/2001 before the Hon'ble High Court of Delhi against the management no. 1 along with another in this regard, which was disposed off with liberty to the workmen/petitioners to file the case before the appropriate Tribunal; that the workmen filed their case before Assistant Labour Commissioner, Kasturba Gandhi Marg, New Delhi, during the pendency of the proceedings of which, their services were terminated by the management on 09.01.2002 without any notice, which is illegal; that the workmen had personally appeared before the management for rejoining on duty but the management refused to re engage them on the same; that the workmen are unemployed since the date of termination on 09.01.2002 inspite of efforts to get job; that the workmen had given representation before Central Labour Advisory Board to issue notification under section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 in respect of the management no.
1. Thus, it is seen from the above said averments/contentions/submissions of the workmen by way of their statement of claim and their affidavits by way of evidence Exts. WW1/A to WW4/A in their workmen evidence, on record, that the I.D No. 332/06 PAGE NO.43 OF 64 main thrust of the case of the workmen is that they were the employees of the management no. 1 viz. M/s CDot i.e. Centre for Development Telematics (CDot), Room No. 904, Akbar Bhawan, Chankya Puri, New Delhi, as mentioned in the instant reference at the premises of the management no. 1 since the year 1993 and that though their employment with the management no. 1 has been shown through Contractor/management no. 2 M/s Print Shop, M6, Palika Bhawan, R.K. Puram, New Delhi as mentioned in the instant reference vide contract/ agreement Ex. WW1/1 (as also Ex. MW2/1) entered into between the management no. 1 and management no. 2 in this regard, however, the same was a sham agreement and accordingly, not governing the terms and conditions of their services with the management no. 1; that they had been in the continuous employment with the management no. 1 as Photocopy Operators since the year 1993 without any break whatsoever, when their services have illegally been terminated on the part of the management no. 1 on 09.01.2002 without giving any notice, notice pay and/or retrenchment compensation, which was illegal; that the employment of the workmen, as above said, on the part of the management no. 1 M/s C Dot, New Delhi for doing the work of photocopy operators of the documents of the management no. 1 in the premises of the management no. 1 through Contractor/management no. 2 M/s Print Shop, New Delhi, which was of a permanent and perennial nature and I.D No. 332/06 PAGE NO.44 OF 64 existing with the management no. 1 even on the date of the termination of the services of the workmen on the part of the management no. 1 was illegal being in violation of the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 specifically Sections 7 and 12 of the said Act since the management no. 1 was not registered for engaging labour/workmen/employees on contract basis for its work as required under section 7 of the said Act nor the management no. 2 was registered/licenced Contractor for supply of workmen/manpower to the principal employer viz. respondent/management no. 1 as required under section 12 of the said Act and accordingly, the engagement of the workmen with the management no. 1 for doing the work as Photocopy Operators under the agreement entered into between the management no. 1 and management no. 2 in this regard, copy of which is Ex. WW1/1 (as also Ex. MW2/1), on record, was illegal and consequent to the termination of their services on the part of the management no. 1 on 09.01.2002 without any notice, notice pay and/or retrenchment compensation on the part of the management no. 1, the workmen were entitled to the relief claimed viz. reinstatement in service with the management no. 1 along with back wages, continuity of service and all consequential benefits, as is evident from the pleadings of the workmen in the instant reference as also the written submissions filed on behalf of the workmen in support of their submissions in the instant proceedings, on record, whereas it is the I.D No. 332/06 PAGE NO.45 OF 64 case of the management no. 1 that the workmen WW1 to WW4 had never been in the employment of the management no. 1 and that they were the employees of the management no. 2 and vide agreement dated 02.02.2000 entered into between the management no. 1 and management no. 2, Ex. MW2/1 ( as also Ex. WW1/1), the management no. 1 had entrusted the photocopying job of its internal documents within the premises of its offices located in New Delhi to the management no. 2 as per the terms and conditions of the said agreement and accordingly, the said workmen even if doing the work of photocopy operators as alleged by them in the premises of the management no. 1 under the said agreement entered into between the management no. 1 and management no. 2 were not the employees of the management no. 1 and cannot be said to be the employees of the management no. 1 in any capacity whatsoever even if doing the said work/job for continuous period as alleged by them, though which has not been specifically admitted on the part of the management no. 1, on record, the relationship of employer and employee having been denied between the management no. 1 and the workmen as alleged by them vide their statement of claim and affidavits by way of evidence Exts. WW1/A to WW4/A, on record as also it has not been proved by way of any cogent, admissible and relevant evidence in the workmen evidence, on record that the management no. 1 was coming under the purview of the Contract Labour (Regulation & Abolition) Act, 1970 in I.D No. 332/06 PAGE NO.46 OF 64 any manner whatsoever in order to being required to register itself as a principal employer with the concerned/competent authority under the said Act, vide the provisions of Section 7 of the same or that the management no. 2 was required to be a licenced Contractor for supply of contract labour under the said Act vide Section 12 of the same since it has nowhere been averred/proved on record that the provisions of the said Act were applicable to the establishment of the management no. 1 and/or to the management no. 2 at the relevant time by virtue of the same viz. the management no. 1 having employed twenty or more workmen on any day of the preceding twelve months as contract labour or the management no. 2/Contractor had employees or employed on any day of the preceding twelve months, twenty or more workmen, on the part of the workmen in their workmen evidence, on record, which are conditions precedent for applicability of the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 to the establishment of a principal employer and contractor and accordingly, the provisions of the said Act are not applicable to the managements as is evident from the written submissions filed on behalf of the management no.1, on record. It is further the case of the management no. 1 that admittedly no notification under section 10 (1) of the Contract Labour (Regulation & Abolition) Act, 1970 has been issued by the competent authority prohibiting engagement of contract labour qua the establishment of the management no. 1, on record, and I.D No. 332/06 PAGE NO.47 OF 64 accordingly, it cannot be said that the engagement of the workmen by the management no. 1 through management no. 2/Contractor under the agreement Ex. MW2/1 (as also Ex.WW1/1) is in violation/contravention of any Statute as also it has been alleged by the management no. 2 M/s Print Shop that the workmen S/Sh. Rajesh Kumar, Puran Singh, Upendra Kumar and Satvir Dagar had been in its employment since August 1993, January 1992, May 1995 and December 1996 respectively and that the management no. 2 had entered into a contract with the management no. 1 CDot for providing inhouse photocopying service w.e.f. December 1, 1994 to November 30, 1995 which contract was renewed from time to time by respondent/management no. 1 in favour of the respondent/management no. 2; that however, the claimants/workmen had agitated, inter alia for their absorption in the regular service of respondent/management no. 1 against their respective posts with all consequential benefits and filed writ petitions before the Hon'ble High Court of Delhi, which had been dismissed by the Hon'ble High Court of Delhi; that as a result of agitation on the part of the claimants/workmen for absorption in regular service of the respondent/management no.1 CDot, the same resulted in non renewal of the contract between the management no. 2 and management no. 1 on the expiry of the contract after first week of January, 2002, which action resulted in closure of the management no. 2 M/s Print Shop w.e.f. 30.04.2002 ; that the services of the workmen I.D No. 332/06 PAGE NO.48 OF 64 have not been terminated by the management no. 2 on 09.01.2002; that after termination of contract of the management no. 2 by the management no. 1 after first week of January 2002, none of the workmen reported back for work with the management no. 2 nor they cared even to reply to the notices issued by the management no. 2 for joining work; that since the workmen were not interested to work with the management no. 2, there was no other alternative left with the management no. 2 but to close down the establishment; that the workmen have thus thereby abandoned their work/employment with the management no. 2 as they wanted to be absorbed in service with the management no. 1.
Admittedly, the onus of proving the factum of relationship of employer and employee between the parties is upon the workmen since the law in this regard is well settled that the onus of proving a fact is upon the party, which alleges it as has been held by the Hon'ble High Court of Delhi vide citation 2006 LLR 851 Delhi High Court; Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. vide which it has been held:
""It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be appropriately made to the judicial I.D No. 332/06 PAGE NO.49 OF 64 pronouncement in III (2001) SLT 561: (2001) 9 SCC 713 (715), State of Gujarat & Ors. V. Pratamsingh Narsinh Parmar, III (2004) SLT 180: 2004 LLR 351 (Para 49), Nilgiri Coop.
Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148, Dhyan Singh V. Raman Lal; 1996 Lab. I.C. 202, Swapan v. First Labour Court, West Bengal; and 1973 Lab.
I.C. 398 N.C., John v. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same."
It has further been held vide the above mentioned citation that :
"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 I.D No. 332/06 PAGE NO.50 OF 64 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/she 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/her 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".
It is seen from the record that no such evidence has been led by the workmen in their workmen evidence qua the management no. 1, on record, nor any such application i.e. an application calling for production of record from the management no. l in respect of the alleged employment of the workmen with the management no. 1 either I.D No. 332/06 PAGE NO.51 OF 64 specifically under the provisions of Section 11 (3) (b) of the Industrial Disputes Act, 1947 (as amended upto date), which is the provision of law under the Industrial Disputes Act, 1947 (as amended upto date) for the same or even otherwise has been moved on the part of the workmen against the management no. 1 in the instant case, on record.
It is further seen from the record that the documents Exts. WW1/1 and WW1/2 which are copies of agreement dated 02.02.2000 entered into between the management no. 1 and management no. 2, as above said and rates for photocopying charges of the management no. 1 respectively; Ex. WW1/3 being copy of an application/ representation dated 13.08.2002 of the workmen to the Secretary, Government of India/Bharat Sarkar, Ministry of Labour/Shram Mantralaya, Jaisalmer House, Man Singh Road, New Delhi110011 and Central Advisory Contract Labour Board, Government of India, Ministry of Labour, Jaisalmer House, Man Singh Road, New Delhi110011 under the Contract Labour (Regulation & Abolition) Act, 1970 in respect of the alleged employment of the workmen with the management no. 1 as Photocopy Operators through management no. 2 being in violation of the provisions of the said Act and for issuance of notification under section 10 (1) of the said Act, against the management no. 1; Ex. WW1/4 being copy of order dated 27.08.2001 of the Hon'ble High Court of Delhi passed in Civil Writ Petition no. 5121/2001 in the matter of Rajesh Kumar & Others Petitioners Vs. I.D No. 332/06 PAGE NO.52 OF 64 Union of India and others Respondents; Ex. WW1/6 Colly being copies of temporary passes of the Government of India, Ministry of Home Affairs dated 13.08.2001, 31.07.2001 and 13.08.2001 in respect of Sh.Jagdish Singh (not workman), Sh. Satvir Singh Dagar (workman) and Sh. Vinod Kumar (not workman); Ex. WW1/7 being photocopy of endorsement viz., "It is to state that Rs. 11,350/ (Rupees Eleven Thousand Three Hundred Fifty Only) has been given to Shri Rajesh Kumar for disbursement of salary of staff and other expenditure at CDot, Pusa Road as under vide UBI cheque No. 472918 dated 09.11.2001:
1. Sh. Rajesh Kumar Rs. 2,950/
2. Sh. Upender Kumar Rs. 2,600/
3. Sh. Puran Singh Bisht Rs. 2,600/
4. Sh. Shambu Kumar Rs. 2,600/
5. Overtime Rs. 400/
6. Extra expenditure Rs. 200/ Total Rs. 11,350/ Sd/ Received illegible Sd Rajesh 09.11.2001 along with photocopy of a cheque bearing no. 472918 dated 09.11.2001 in the name of workman Sh. Rajesh Kumar for an amount of Rs. 11,350/ drawn on Union Bank of India, Branch Moti Bagh (1), I.D No. 332/06 PAGE NO.53 OF 64 New Delhi110066 of the management no. 2, which has been admitted to bearing the signature of Sh. Amarjeet Singh, Sole proprietor of the management no. 2 M/s Print Shop as account payer at point 'A' thereon. Ex. WW1/8 being again photocopy of a similar endorsement viz., "It is to state that Rs. 10,950/ (Rupees Ten Thousand Nine Hundred Fifty Only) has been given to Shri Rajesh Kumar for disbursement of salary of staff and other expenditure as under vide UBI, Moti Bagh (I), cheque No. 472926 dated 07.12.2001:
1. Sh. Rajesh Kumar Rs. 2,950/
2. Sh. Upender Kumar Rs. 2,600/
3. Sh. Puran Singh Bisht Rs. 2,600/
4. Sh. Shambu Kumar Rs. 2,600/
5. Extra expenditure Rs. 200/ Total Rs. 10,950/ Sd/ Received by illegible Sd/ Rajesh 07.12.2001 along with photocopy of a cheque bearing no. 472926 dated 07.12.2001 in the name of Sh. Rajesh Kumar for an amount of Rs. 10,950/ drawn on Union Bank of India, Branch Moti Bagh (1), New Delhi110066, admittedly of the management no. 2 with the signatures of the Sole proprietor Sh. Amarjeet Singh of the management no. 2 as I.D No. 332/06 PAGE NO.54 OF 64 account payer thereon; Ex. WW1/9 being copy of internal letter dated 21.08.2001 of the management no. 1 in respect of approval for issuance of enquiry/tenders for the work of hire and maintenance of plants and Inhouse photocopying services; Exts. WW1/10 to WW1/14 being copies of the certificates of the management no. 1 dated March 20, 1997, January 14,1998, August 29, 2001, January 12, 1998 and 28.01.1999 in respect of workmen S/Sh. Puran Singh Bisht, Rajesh Kumar, Vinod Kumar (not workman), Upendra Kumar and Satvir Singh Dagar respectively to the effect as follows: Ex. WW1/10: This is to certify that Mr. Puran Singh Bisht S/o Sh Diwan Singh Bisht been entrusted the job of operation of all types of photocopiers, Ammonia prints and all types of Binding jobs at our premises through our Photocopying contractor M/s The Print Shop since January, 1992. Mr. Puran Singh Bisht is a sincere & hard working man. I wish his success through out his life. Sd/ Bala Parmeshwari. K, Manager (P &A).
Ex. WW1/11: This is to certify that Sh. Rajesh Kumar S/o Sh. Harish Chander, has been engaged by our Photocopy Contractor M/s The Print Shop, M6 Palika Bhawan, R.K. Puram, New Delhi110066 for inhouse Photocopying, Binding, Filing and Dispatch work since August 8, 1993 till date. Shri Rajesh Kumar is a sincere and hard working person. During his working period in CDot, his behaviour has been found to be good. I wish him success I.D No. 332/06 PAGE NO.55 OF 64 throughout his life. Sd/ Vivek Tripathi, Manager Admin.
Ex. WW1/12: This is to certify that Mr. Vinod Kumar S/o Sh. Amichand Residence of 228 Maidan Garhi, New Delhi110068 is working since February, 1999 till date. He bears a good character and conduct. He is a hard working boy. Sd/ Vivek Tripathi, Manager (P&A).
Ex. WW1/13: This is to certify that Shri Upendra Kumar has been engaged by our Photocopying Contractor M/s Print Shop, M6 Palika Bhawan, for inhouse photocopying and binding work since 1995. Shri Upendra Kumar is a sincere and hardworking person. During his working hours in CDot, his behaviour has been found to be good. Sd/ Bala Parmeshwari.K, Manager (P&A).
Ex. WW1/14: This is to certify that Mr. Satvir Singh Dagar S/o Mr. Raghubir Singh Dagar is a resident of 142 Maidan Gardhi, New Delhi110068 and is known to us since 1996. He bears a good moral character and conduct. He is a hard working boy. Sd/ Dr. Sunil Abrol, Registrar CDot., I find from the record do not go towards establishing the relationship of employer and employee between the workmen and the management no. 1 since they nowhere establish the twin tests viz. (i) Whether the principal employer pays the salary instead of the contractor and (ii) Whether the principal employer controls and supervises the work of the employee as laid down by the Hon'ble I.D No. 332/06 PAGE NO.56 OF 64 Supreme Court of India vide citation (2011) 1 SCC 635 General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon, Appellant Vs. Bharat Lal and Anr., Respondents, to find out whether the contract labourers are the direct employees of the principal employer or not. It has further been held by the Hon'ble Supreme Court of India vide the said citation that the onus is upon the employee to aver and prove that he was paid salary directly by the principal employer and not by the contractor. I find from the record that the workmen have not discharged this onus. On the contrary the workmen have proved vide their Exts. WW1/7 and WW1/8 in their workmen evidence, on record that they have been paid their salary and other allowances amounting to Rs. 11,350/ and Rs. 10,950/ respectively for the months of October and November 2001 by the management no. 2 as account payer vide cheque bearing nos. 472918 and 472926 dated 09.11.2001 and 07.12.2001 respectively for amounts of Rs. 11,350/ and Rs. 10,950/ respectively in the name of workman Sh. Rajesh Kumar to be disbursed to the other workmen, both drawn on Union Bank of India, Branch Moti Bagh (1), New Delhi 110066 of the management no. 2 as got admitted on the part of the workmen in their cross examination of the management witness no. 1 Sh. Amarjeet Singh, Sole proprietor of the management no. 2 in management evidence, on record when he states that Ex. WW1/7 is signed by him at point 'A' thereon. That even with regard to the second test the I.D No. 332/06 PAGE NO.57 OF 64 workmen have not established that they were working under the direct control and supervision of the principal employer the management no. 1 in the instant case. The expression "control and supervision" in the context of contract labour was explained by the Hon'ble Supreme Court of India in International Airport Authority of India Vs. International Air Cargo Workers' Union and another (2009) 13 Supreme Court Cases 374 thus "38.....if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor and the ultimate supervision and control lies with the contractor.
39.The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/alloted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/alloted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the I.D No. 332/06 PAGE NO.58 OF 64 worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
In view of my above observations and findings, I thus find that the workmen have not been able to discharge the onus, which was upon them in respect of the instant issue viz. Whether there existed relationship of employer and employee between the workmen and the management no. 1. The same is hereby accordingly, decided against the workmen and in favour of the management no. 1.
Issue no. 2.
It is seen from the record that the workmen have all along alleged that they were the employees of the management no. 1 and not of the management no. 2 in any capacity whatsoever, and that the alleged agreement between the management no. 1 and management no. 2 in respect of their employment with management no. 1 Ex. MW2/1 (as also Ex. WW1/1) was a sham and camouflaged document (as is evident from the pleadings, evidence as also written submissions filed on behalf of the workmen, on record). It is further seen from the record that the management no. 2 vide its cross examination of the workmen WW1 to WW4 in workmen evidence, on record, has brought out in respect of the WW1 Sh. Satvir Dagar that his services were terminated in CDot; that he did not write any letter or give any notice to Sh. Amarjeet Singh of Print Shop; that he received one letter I.D No. 332/06 PAGE NO.59 OF 64 dated 14.02.2002 Ex. WW1/M1 from Print Shop for joining the services; that he did not give any written reply to the said letter. Vol. However, he personally went to the management; that it was correct that he had filed a writ petition in Delhi High Court; that it was correct that their authorized representative informed the Assistant Labour Commissioner that they want to work only with CDot, qua the WW2 in his cross examination on behalf of the management no. 2, in workmen evidence to the effect that it was correct that they filed a writ petition in Delhi High Court for absorption in CDot; that it was correct that he received letter dated 14.02.2002 from Sh. Amarjeet Singh, which is Ex. WW2/M1; that it was correct that he had not replied to the said letter in writing. Vol. However, he went to the shop of Sh. Amarjeet Singh to take back him on duty but he did not take him back on duty; that it was wrong to suggest that he had not gone to Sh. Amarjeet Singh as also qua the workman WW3 Sh. Puran Singh in his cross examination on behalf of the management no. 2 in workmen evidence to the effect that he received the letter dated 14.02.2002 Ex. WW3/M1 from the management; that he did not reply the said letter in writing, but he personally met Sh. Amarjeet Singh; that it was wrong to suggest that his services were terminated by Sh. Amarjeet Singh as also qua the workman WW4 Sh. Rajesh Kumar in his cross examination on behalf of the management no. 2 in workmen evidence to the effect that it was correct that he received letter dated I.D No. 332/06 PAGE NO.60 OF 64 17.01.2002 which is Ex. WW1/M1; that it was correct that he had received letter dated 14.02.2002 which is Ex. WW1/M2; that it was correct that he had not replied either of the above letters in writing; that it was correct that he had filed the present industrial dispute for reinstatement in management no. 1 only; that it was correct that he had filed a writ petition in the Hon'ble High Court for regularisation in the service of the management no. 1 i.e. CDot. Vol. In the said writ the other management was also made a party; that he had attended the conciliation proceedings held before Sh. S.K.Sharma; that it was correct that in the conciliation proceedings his authorized representative told the conciliation officer that he was willing to work with the management of CDot; that he was not aware whether the employment of contract labour has been prohibited or not; that it was wrong to suggest that while working with CDot, they used to work for 5 days in a week;that Mr. Vivek Tripathi, the Admn. Manager CDot had informed him that his services had been terminated; that he did not mention this fact in his statement of claim; that it was wrong to suggest that even after receiving the letters dated 17.01.2002 and 14.02.2002, he never reported for duty with management no. 2.
It is further seen from the record that in their cross examination of the MW1 Sh. Amarjeet Singh, Sole proprietor of the management no. 2 in management evidence, the workmen have put a suggestion to the said MW1 Sh. Amarjeet Singh, Sole proprietor of the I.D No. 332/06 PAGE NO.61 OF 64 concerned firm that they were not his employees, to which he has replied that it was wrong to suggest that the workmen were not his employees.
It is further seen from the record that the management no. 2 has proved, on record the letters admitted by the workmen in their cross examination on behalf of the management no. 2 in workmen evidence, as above said, viz. Exts. WW1/M1 to WW3/M1 and Ex. WW4/M2 which are letters dated 14.02.2002 of the management no. 2 to the workmen in respect of their absence from their duties with the management no. 2 for over a month without any information / permission despite letter dated 17.01.2002 sent to them under postal certificate and accordingly, it was deemed that they had abandoned their services with the management no. 2. It is further seen from the record that Exts. MW1/1 to MW1/3 and Ex. WW4/M1 are the letters dated 17.01.2002 from the management no. 2 to the workmen S/Sh. Upender Kumar, Puran Singh, Satvir Singh Dagar and Rajesh Kumar respectively in respect of their absence from their duties with the management no. 2 after first week of January, 2002 to which letters, it is seen from the record vide the cross examination of the WW1 to WW4 on behalf of the management no. 2 in workmen evidence, as above said, it has been admitted by the workmen that they had received the subject letters Exts. WW1/M1 to WW4/M1 and Ex. WW4/M2 for their alleged absence from their duties with the I.D No. 332/06 PAGE NO.62 OF 64 management no. 2 but had chosen not to reply to the same. It is further seen from the record that apart from their categorical case that they were not the employees of the management no. 2 and were in fact the employees/in the employment of the management no. 1 during the period of service alleged, the workmen have not led any evidence qua the management no. 2 to the effect that they ever reported for duties with the management no. 2 pursuant to receipt of the above said letters of the management no. 2 to them in this regard, on record, as volunteered on their part in their cross examination on behalf of the management no. 2 in workmen evidence, as above said, nor even alleged the same in their statement of claim and affidavits by way of evidence Exts. WW1/A to WW4/A in workmen evidence, on record.
In view of my above observations and findings, I find that the workmen have not been able to discharge the onus, which was upon them to prove that their services had been terminated on the part of the management no. 2, on the date alleged viz. 09.01.2002 and on the other hand, the management no. 2 has been able to prove vide the testimony of the MW1 Sh. Amarjeet Singh, Sole proprietor of the management no. 2 by way of his affidavit by way of evidence Ex. MW1/A as also Exts. MW1/1 to MW1/6 as also Exts. WW1/M1 to WW4/M1 and Ex. WW4/M2 in management evidence that the workmen had abandoned their services/employment with the management no. 2 on the said date/after the first week of January, I.D No. 332/06 PAGE NO.63 OF 64 2002, as alleged.
In view of my above observations and findings, the instant issue is accordingly, decided against the workmen and in favour of the management no. 2.
Issue no. 3 In view of my findings on issue nos. 1 and 2, hereinabove, the workmen are held not entitled to any relief.
Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open Court (CHANDRA GUPTA) on 30.03.2013. Presiding Officer Labour CourtX, Karkardooma Courts, Delhi.
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