Delhi District Court
Arun Kumar vs City Hospital on 24 April, 2025
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 9519/16
CNR No. DLCT13-012951-2016
In the matter of:
Sh. Arun Kumar
S/o Sh. Ram Niwas
R/o Village and Post Atayal,
PS Sanpala, District Rohtak, Haryana
Mobile No. 8053422571
Through:
All India General Mazdoor Trade Union (Regd. 3025)
Office at: 170, Bal Mukund Khand,
Giri Nagar, Kalkaji, New Delhi-110019.
.....Claimant/Workman
Details of immediate family member of claimant/workman:
Name: Smt. Suman (wife)
Mobile No. 9306552908
Details of Authorized Representative of claimant/workman:
Name: Sh. Anil Rajput
Mobile no. 9818086327
Email ID: Not Provided
VERSUS
1. M/s Sir Ganga Ram City Hospital
(a Unit of Conner Institute of Health Care
and Research Centre Pvt. Ltd.),
B-1/1, N.E.A Pusa Road, New Delhi-110060.
LIR No. 9519/16 POOJA
Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 1 of 22
Digitally signed by
POOJA AGGARWAL
Date: 2025.04.24
17:03:05 +0530
2. M/s Helpline Facility Management Pvt. Ltd.,
T-1404/1, 3rd Floor, Street No. 7,
Wazir Nagar, Kotla Mubarak Pur,
New Delhi-110003.
Also at : D-74, Ground Floor, Sector-2,
Noida (UP)-201301.
.....Managements
Details of Authorized Representative of management no.1:
Name : Ms. Deepti Singh
Mobile no. 9873393746
E mail ID of management: [email protected]
Details of Authorized Representative of management no.2:
Name : Ms Kiran Saini,
Mobile no. Not provided
E mail ID of management: [email protected]
Date of Receipt of Reference : 03.11.2016
Date of Award : 24.04.2025
AWARD
1. A consolidated reference was received from the then Joint
Labour Commissioner (Central District), Labour Department,
Government of NCT of Delhi vide its order No. F-24(108)/ 16/
Ref./ CD/ Lab/ 591 dated 21.10.2016, under Section 10(1)(c)
and 12(5) of the Industrial Disputes Act, 1947 regarding an
industrial dispute between Sh. Ajay Dikka and 79 Ors.
including the present workman Sh. Arun Kumar S/o Sh.Ram
Niwas (at Sl. No. 58) (hereinafter referred to as 'claimant/
workman') and the managements of M/s Sir Ganga Ram City
Hospital (hereinafter referred to as 'management no.1') and of
M/s Helpline Facility Management Pvt. Ltd. (hereinafter
referred to as 'management no.2') with the following terms of
reference:
LIR No. 9519/16 POOJA
AGGARWAL
Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Page No. 2 of 22
Digitally signed by
POOJA AGGARWAL
Date: 2025.04.24
17:03:12 +0530
"Whether the services of workmen Sh. Ajay Dikka and
79 ors. as shown in 'Annexure A' have been terminated
illegally and/or unjustifiably by the management; and
if so, to what reliefs are they entitled to and what
directions are necessary in this respect?"
2. After receipt of the reference, vide order dated 03.11.2016, the
Ld. Predecessor directed for the original reference to be
registered in the case of Ajay Dikka while a copy of the
original reference was directed to be annexed in other 79 cases
including the present case.
Facts as per statement of claim
3. Upon notice of the reference, the claimant/ workman filed his statement of claim, inter alia asserting that he was working with the management hospital since 01.04.2006 as a Ward boy with his last drawn salary being ₹9,568/- per month without any complaints or charges against him.
4. It has been further asserted that the management was not providing any benefits to the claimant/workman as per labour laws like appointment letter, leave book, Salary Slip, Weekly and Yearly Off, Double Overtime, Bonus, Travelling Allowance, HRA, prevailing Earned Leaves etc.
5. It has been further asserted that the claimant/ workman had been initially appointed by the Principal Employer but later on, his name was shown on the rolls of the contractor M/s Glaze Services Pvt. Ltd. which was a company of the Principal Employer itself.
LIR No. 9519/16 Digitally
Arun Kumar vs Sir Ganga Ram City Hospital & Anr. signed by
POOJA Page No. 3 of 22
POOJA AGGARWAL
AGGARWAL Date:
2025.04.24
17:03:18
+0530
6. It has been further asserted that the Principal Employers showed the name of the claimant/ workman in the records of a Sham Contractor i.e. management no. 2 w.e.f. 01.09.2015 even though the said contractor did not have any license under the Contract Labour (Regulation and Abolition) Act, 1970. It has also been asserted that the management no. 1 also did not have any registration under the Contract Labour (Regulation and Abolition) Act, 1970 as it had not renewed its registration since last three years.
7. It has also been stated that the claim of the claimant/ workman for regularization was pending, despite which the management no. 1 terminated his services on 30.07.2016 without any chargesheet or notice, and they also did not pay the earned wages for the period 01.07.2016 to 30.07.2016 to the claimant/ workman, violating Section 33 and Section 25F of the Industrial Disputes Act.
8. It has been further asserted that the Principal Employer through Contractor M/s Glaze Services Pvt. Ltd. had entered into a settlement before the Conciliation Officer where it had been clarified that the contractor will employ the previous workmen and provide them all the facilities. It has been further asserted that the Principal Employer had given in writing that the workmen will work with the new contractor and better services will be provided to them, despite which the services of claimant/workman was terminated by the managements.
9. It has been further asserted that a demand letter dated LIR No. 9519/16 POOJA Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 4 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:03:24 +0530 02.08.2016 was sent to the managements by the claimant/ workman through registered AD/Speed Post but the managements did not reply to the same despite service, did not reinstate him and also did not make any payment to him.
10. It has been further asserted that the managements used to obtain overtime work from the claimant/workman but did not make any payment towards overtime despite repeated requests. It has been further asserted that the management did not reinstate him despite intervention of the Labour Inspector and thereafter, an industrial dispute was raised before the Labour Department but the conciliation proceedings failed, whereafter reference was sent to the Court.
11. It has also been asserted that the claimant/workman is unemployed since the date of his termination and hence the present claim seeking reinstatement with full back wages.
Facts as per reply/written statement of management no.1
12. In their reply/written statement, management no. 1 raised preliminary objection as to there being no employer- employee relationship between the parties and as to the claimant/ workman being not a workman as defined under section 2 (s) of the ID Act, 1947. It has also been asserted that management no. 1 was not legally precluded from entering into a contract for service with an independent contractor with regard to any process, operation or other work in its establishment and that management no. 1 had entered into LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 5 of 22 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:03:31 +0530 bonafide a contract with various independent contractors from time to time for carrying out, inter-alia, the housekeeping services.
13. It has been further asserted that the claimant/workman had been employed by management no. 2 contractor and that he had been deployed in the hospital for performing housekeeping service entrusted to it by management no. 1 under a bonafide contract of service. It has been further stated that it was management no. 2 which was responsible for employing its own employees, whose work was supervised by the contractor who also paid wages to the employees and as such the industrial dispute could only be raised against management no. 2.
14. It has been further asserted that the claimant/workman along with other labour employed by M/s Glaze Services Pvt. Ltd. had entered into a conciliation settlement through M/s All India General Mazadoor Trade Union (Regd), under Section 12 (3) read with Section 18 (3) of the Industrial Disputes Act, 1947 dated 17.09.2015 on the clear basis that they were employed by the contractor M/s Glaze Services Pvt. Ltd., after which they had received their full and final dues from their employer and subsequently the claimant/workman had been employed by the new contractor management no. 2 as its fresh employee. It has been further asserted that management no. 2 M/s Helpline Facility Management Pvt. Ltd. had ceased to be a contractor of the management no. 1 w.e.f. 31.07.2016 and the housekeeping services had now LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 6 of 22 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:03:39 +0530 been outsourced to a new contractor i.e. M/s. Evershine Housekeeping Services.
15. On merits, all the averments made in the statement of claim have been denied and it has been reiterated that the post of ward boy had always been outsourced by the management no.1 to independent contractors which employed their own employees on its own rolls and also supervised their work.
Facts as per rejoinder to reply/written statement of management no. 1.
16. In his rejoinder, all the averments made in the written statement/ reply as filed on behalf of management no. 1 were denied by the claimant/ workman and the contents of statement of claim were reiterated.
17. The right of the management no.2 to file the written statement was closed by the Ld Predecessor vide order dated 06.01.2022.
Issues
18. The following issues were framed by Ld. Predecessor vide order dated 31.05.2022
1. Whether there is no employer-employee relationship between the workman and management no.1? OPM
2. In terms of reference:
Whether the services of workman Sh. Ajay Dikka and 79 ors. as shown in 'Annexure A' have been terminated illegally and/or unjustifiably by the management; and if so, to what reliefs are they entitled to and what directions are necessary in this LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 7 of 22 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:03:45 +0530 respect?
3. Relief.
Workman Evidence
19. The claimant/workman examined himself as WW1 and tendered his evidence affidavit i.e. Ex. WW1/A. He also relied upon the following documents:
S.No. Description of Documents Exhibit/Mark
1. Copy of Statement of claim Ex WW1/1 filed before Conciliation Officer
2. Copy of Demand Notice with Ex.WW1/2 to postal receipts Ex. WW1/4
3. Copy of ID card issued by Ex. WW1/5 management no.1
20. He was duly cross-examined on behalf of the management no.1, during which, inter-alia the documents i.e. copy of settlement i.e. Ex. WW1/M1 and receipts i.e. Ex. WW1/M2 and Ex WW1/M3 were put to him.
21. The right of the management no.2 to cross-examine the claimant / workman was closed as none had appeared to cross-examine him and the management no.2 was also proceeded exparte vide order dated 03.02.2024.
Management Evidence
22. The management no.1 examined M1W1 Mr. Jitender Kumar Sharma who tendered his evidence affidavit i.e. Ex. M1W1/A and relied upon the following documents:
LIR No. 9519/16Digitally Arun Kumar vs Sir Ganga Ram City Hospital & Anr. signed by Page No. 8 of 22 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:03:53 +0530 S.No Description of Documents Exhibit/Mark
1. Original resolution dated Ex.M1W1/1 27.02.2024 in his favour.
2. Copy of contract between Ex.M1W1/2 Management no.1 and Management no.2. dated 28.08.2015
3. Letter dated 20.06.2016 issued Ex.M1W1/3 by Management no.1 to Management no.2.
4. Office order dated 30.06.2016 Ex.M1W1/4 issued by management no.2
5. Copy of application dated Ex.M1W1/5 16.10.2015 of management no. 2 under Contract Labour Act
6. Return of contribution of Ex.M1W1/6 management no.2 under EPFO (colly)
7. Electronic challan under ESIC Ex.M1W1/7 on behalf of management (colly) no.2.
8. Registration certificate issued Ex.M1W1/8 to management no.1 under (colly) Contract Labour Act
9. Copy of award dated Ex.M1W1/9 06.01.2018
10. Copy of award dated Ex.M1W1/10 24.01.2024 in POIT No.53/23 titled Vikram & Ors. vs. Sir Ganga Ram City Hospital
11. No Dispute Award dated Ex.M1W1/11 11.10.2022 in LIR No.1653/19 titled as Ajay Dikka & 79 ors.
vs. Sir Ganga Ram City Hospital
12. Documents already Ex. WW1/ M1 and Ex.WW1/M2
23. He was duly cross-examined on behalf of the claimant/ LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 9 of 22 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:04:00 +0530 workman.
24. The management no.1 also examined M1W2 Sh. Arun Singh Rawat, Assistant from ESIC Branch Office, Okhla as a summoned witness who produced his letter of authorization i.e. Ex. M1W2/1 as well as the summoned record i.e. e- Pehchan card of workman issued by his employer M/s Glaze Services Pvt. Ltd. i.e. Ex.M1W2/2 (colly), the ledger sheet of workman i.e. Ex.M1W2/3, the monthly contribution history of workman i.e. Ex.M1W2/4 (colly) reflecting contribution by M/s Glaze Services Pvt. Ltd. till August 2015 and thereafter contribution has been submitted by M/s Helpline Facility Management Pvt. Ltd.. He also produced the Audit Trail of workman i.e. Ex.M1W2/5 (colly). He was not cross- examined on behalf of the claimant/ workman despite opportunity.
25. M1W3 Sh. Vibash Kumar, UDC from ESIC Branch Office Ashram produced the summoned record i.e. Return of Contribution (Form 5) of management no.2 from October 2014 to September 2016 i.e. Ex M1W3/1A (colly.) reflecting the name of workman. He was also not cross-examined on behalf of the claimant/ workman despite opportunity.
26. M1W4 Sh. Umesh Kumar, SSSA from EPFO Regional Office, Wazirpur produced the letter of authorization in his favour and also the record i.e. Electronic challan cum return (ECR) for wages of March 2015 to July 2016 pertaining to the management no.2 i.e. Ex M1W4/2. He was also not cross-
LIR No. 9519/16 POOJA Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 10 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:04:08 +0530
examined on behalf of claimant/ workman despite the opportunity.
27. At the stage of final arguments, on request of the AR of the claimant/workman, vide order dated 21.12.2024, the issue no.1 was reframed as under:
"Whether there was relationship of employer- employee between management no.1 and the claimant / workman? OPW"
28. No further evidence was led in view of the reframed issue no.1 as both the Ld. ARs gave a statement to the effect that they did not wish to lead any further evidence in view of the reframed issue and relied on the evidence already led.
Final Arguments
29. Final arguments were then advanced on behalf of the claimant/workman as well as management no. 1 by their respective Authorized Representatives.
30. The final arguments as advanced have been carefully considered along with the evidence on record and after careful consideration, the issue wise findings are as under:
Issue No. 1 as reframed on 21.12.2024: Whether there was relationship of employer-employee between management no.1 and the claimant / workman? OPW
31. The onus to prove this issue was upon the claimant/ workman as it is a settled proposition of law that the burden to prove a fact is on the one who asserts the same. It is also a settled proposition of law that in cases wherein the management LIR No. 9519/16 Digitally Arun Kumar vs Sir Ganga Ram City Hospital & Anr. signed by POOJA Page No. 11 of 22 POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:04:15 +0530 denies the existence of employer-employee relationship, the burden of proving the existence of such relationship primarily rests upon the person asserting the same. It is for the person asserting himself to be an employee of the management, to discharge the initial burden by leading positive evidence to show himself to be an employee of the management and it is only thereafter that the onus would shift to the management to counter the same. It is not for the management to prove that the claimant is not its employee.
32. Strength for this interpretation is drawn from the judgment of Hon'ble High Court of Delhi in Babu Ram Vs Govt. of NCT of Delhi & Anr., (247 (2018) DLT 596), wherein it has been observed that:
"It is well settled principle of law that the person, who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. In this regard, the Hon'ble Supreme Court in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. V. State of T.N. and Others, (2004) 3 SCC 514 has approved the judgment of Kerala and Calcutta High Court, where the plea of the workman that he was employee of the company was denied by the company and it was held that it was not for the company to prove that he was not an employee. Para 48 to 50 of the said judgment reads as under :
"48.In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers' Union & Ors, (1973 Lab IC 398) the Kerala High Court held : The burden of proof being on the workmen to establish the employer employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer employee relationship.
49.In Swapan Das Gupta & Ors. v. The First Labour Court of W.B. (1976 Lab IC 202 (Cal)) it has been held : Where a person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.LIR No. 9519/16
POOJA Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 12 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:04:22 +0530
50.The question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse."
(Emphasis supplied)
33. In respect of the degree of proof, it is to be borne in mind that it is the cumulative effect of the material before the Court which is to be considered as was held by the Hon'ble Supreme Court in Kanpur Electricity Supply Co. Ltd. Vs Shamim Mirza, ((2009) 1 SCC 20), as under:
"20. It is trite that the burden to prove that a claimant was in the employment of a particular management, primarily lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management."
(Emphasis supplied)
34. The claimant/workman can discharge such burden either by leading direct evidence in the form of appointment letter or written agreement or by circumstantial evidence in the nature of attendance register, salary register, leave records, deposit of PF contribution, ESIC etc. and or even by examination of co-workers. Strength for this interpretation is drawn from the judgment of Hon'ble High Court of Delhi in Automobile Association Upper India v. P.O. Labour Court-II & Anr., (130 (2006) DLT 160), wherein the Hon'ble Delhi High Court has held that :
"Engagement and appointment of the workman in service can be established either by direct evidence like existence and production of appointment letter or written agreement, or by circumstantial evidence of incidental or ancillary records, in LIR No. 9519/16 Digitally Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Page No. 13 of 22 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:04:30 +0530 nature of attendance register, salary register, leave records, deposit of PF contribution, ESI etc. or even by examination of co-worker who may depose before the court that the workman was working with the management".
(Emphasis supplied)
35. In the case at hand, the claimant/workman has testified in his evidence affidavit i.e. Ex.WW1/A that he was working with the management since 01.04.2006 having been appointed by the management no.1 itself, but his name was transferred to the contractor M/s Glaze Services Private Ltd. and thereafter, his name was illegally shown in the records of a Sham Contractor i.e. the management no.2 since 01.09.2015 even though management no.2 did not have any licence under the Contract Labour (Regulation and Abolition) Act, 1970 nor the management had renewed its registration under the said Act.
36. He has also relied upon an ID card i.e. Ex WW1/5 testifying that the same had been issued by the management no.1 in 2006. However, a bare perusal of Ex WW1/5 reveals that the document does not bear any date of issuance, nor its issuance has been admitted by the management no.1. For reasons best known to him, the claimant/workman led no further evidence to prove that Ex WW1/5 had indeed been issued by the management no.1 including summoning of any records from the management nor Ex WW1/5 was ever even put to M1W1, in the absence of which, the very factum of issuance of Ex WW1/5 by the management no.1 remains unproved.
37. Except self serving testimony in his affidavit, the claimant/ workman has not filed any document to prove his LIR No. 9519/16 POOJA AGGARWAL Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Page No. 14 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:04:40 +0530 appointment/ employment by/with the management no.1 including appointment letter, salary slip etc. Though he had asserted in his statement of claim, that he was not provided any appointment letter, salary slip etc. by the management, for reasons best known to him, the claimant/ workman did not even testify in his evidence affidavit i.e. Ex WW1/A regarding not being provided such legal facilities.
38. This non-averment when coupled with the factum of non-
production/ proof of any document to prove his employment with the management no.1, is fatal to the claim of the claimant/workman as to being an employee of the management no.1 even more so, since in his cross- examination, he has admitted that he had entered into a settlement with his employer i.e. M/s Glaze Services Pvt. Ltd. before the Labour Department.
39. It is also pertinent to note here that during his cross-
examination, the claimant/workman has also admitted his signatures on the settlement i.e. Ex WW1/M1 which is a settlement arrived at between M/s Glaze Services Pvt. Ltd. and the Union of the workman. He has also identified his signatures on Ex. WW1/M2 and Ex. WW1/M3 admitting the receipt of ₹30,489/-. He has also admitted that after his settlement, he had joined the management no.2.
40. These admissions further disprove the claim of the claimant/ workman as to being an employee of the management no.1 and as to his services having been transferred to M/s Glaze LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 15 of 22 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.04.24 17:04:47 +0530 Services Pvt. Ltd. or as to him having been shown on the rolls of the management no.2 illegally, since if he was infact an employee of the management no.1 and if his name had been shown on the rolls of the management no.2 illegally, there would have been no occasion for the claimant/workman to have joined the management no.2 himself, that too after any settlement with M/s Glaze Services Pvt. Ltd.
41. Further, the admission of the claimant/ workman as to his attendance being marked by M/s Glaze Services Pvt. Ltd. and management no.2, also disproves the claim of the claimant/workman as to him being an employee of the management no.1.
42. It is not lost sight of that in the present case, the claimant/workman has also asserted that the contract between the management no.1 and M/s Glaze Services Pvt. Ltd. as well as management no.2 were sham.
43. It is a settled proposition of law that in cases, where the contract between the principal employer and contractor is alleged to be sham, nominal or merely a camouflage to deny employment benefits to the employee there are two well- recognized tests to find out whether the contract labour are the direct employees of the principal employer i.e. (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. (Ref: Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635).
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44. However, in the present case, it is not even the case of the claimant/workman that his salary was being paid by the management no.1 nor is it his case that he was working under the supervision or control of the management no.1. Despite testifying in his cross-examination that his wages were transferred into his account with Indian Bank, the claimant/workman never averred nor produced any document to prove that his wages were being paid by the management no.1. Hence, the factum of payment of salary of the claimant/workman by the management no.1 and as to the job of the claimant/ workman being supervised by the management no.1, remains not averred and unproved.
45. In view of the aforesaid discussion, in the absence of any documentary evidence having been led by the claimant/ workman to prove his employment by the management no.1, it is held that the claimant/workman has failed to prove the existence of any employer-employee relationship between the management no.1 and him.
46. This issue is accordingly decided against the claimant/ workman and in favour of the management no. 1.
Issue No.2: In terms of reference:
Whether the services of workman Sh. Ajay Dikka and 79 ors. as shown in 'Annexure A' have been terminated illegally and/or unjustifiably by the management; and if so, to what reliefs are they entitled to and what directions are necessary in this respect?, and Issue no.3: Relief LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 17 of 22 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:05:03 +0530
47. In his evidence affidavit i.e. Ex.WW1/A, the claimant/ workman has categorically testified that his services had been terminated by the managements on 30.07.2016.
48. Though the factum of the claimant/workman being an employee of the management no.1 has remained unproved, the factum of him being an employee of the management no.2 as on 30.07.2016 is proved from the record produced by the summoned management witnesses i.e. return of contributions ESIC Ex M1W3/1A which reflects the employee code of the management no.2 as 20001097650001001 and the name of the workman in the period from 01.04.2015 to 30.09.2015, 01.10.2015 to 31.03.2016 and 01.04.2016 to 30.09.2016. The document Ex M1W2/4 i.e. audit trail reflects the workman to have joined the management no.2 on 01.09.2015 and having worked till 31.07.2016.
49. In the absence of any written statement having been filed by the management no.2, there is no reason to disbelieve the testimony of the claimant/ workman that his services had been terminated by the management on 30.07.2016. Hence, the factum of cessation of employment of the claimant/ workman with the management no.2 w.e.f 30.07.2016 stands proved, as the management no.1 had no occasion to terminate the services of the claimant/workman, not being his employer.
50. Thus, from the evidence as led, on a scale of preponderance of probabilities, it stands proved that the cessation of services of claimant / workman on 30.07.2016 was in the nature of LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 18 of 22 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:05:10 +0530 termination of services by the management no.2.
51. In as far as the legality of such termination is concerned, it is noted that there is no evidence on record to prove that the management no.2 had given any notice or notice pay or retrenchment compensation to the claimant/workman prior to his termination, in compliance of Section 25F of the Industrial Disputes Act, 1947. Hence, as in the present case, the conditions prescribed in Section 25F of The Industrial Disputes Act, 1947 have not been proved to have been complied with, the termination of the claimant/ workman by the management no.2 is held to be illegal.
52. In as far as to relief is concerned, it is noted here that the claimant/ workman seeks reinstatement with full back wages and consequential benefits.
53. In Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443. also referred to by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, the Hon'ble Supreme Court laid down as under:
"....Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of LIR No. 9519/16 Arun Kumar vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 19 of 22 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:05:18 +0530 discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not. comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
(Emphasis supplied)
54. In Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, it has also been held by the Hon'ble Supreme Court that:
"4. It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation"
(Emphasis supplied)
55. In the present case, as per the testimony of the claimant/ workman in Ex. WW1/A, he is unemployed since the termination of his services by the management. Nothing material could be brought out in his cross-examination to discredit this testimony of the claimant/ workman.
56. Even so, in the present case, the testimony of the LIR No. 9519/16 POOJA Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 20 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:05:25 +0530 claimant/workman as to the management having refused to reinstate him even after intervention of the Labour Inspector, indicates the loss of confidence between the parties, and it would not be conducive in the interest of industrial peace to reinstate the claimant/workman with the management no.2.
57. That being so, in view of the legal proposition as laid in Surendra Kumar Verma v. Central Govt. Industrial Tribunal- cum- Labour Court, (1980) 4 SCC 443 and referred in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, considering that as per Ex M1W2/4, the claimant/workman is reflected to be an employee of the management no.2 only w.e.f. 01.09.2015 and the claimant / workman has not led any evidence to prove his employment with the management no.2 prior to 01.09.2015, and further considering that the services of the claimant/workman were terminated on 30.07.2016 i.e. when he had been working with the management no.2 for less than a year prior to his illegal termination, it would be inequitable to award reinstatement, and interests of justice shall be served if the claimant/workman is awarded lump sum compensation of ₹25,000/- (Rs. Twenty Five Thousand Only) payable by the management no.2. Hence, the claimant/workman is awarded lump sum compensation of ₹25,000/- (Rs. Twenty Five Thousand Only) in lieu of reinstatement to be paid by the management no.2.
LIR No. 9519/16 POOJA Arun Kumar vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 21 of 22 Digitally signed by POOJA AGGARWAL Date: 2025.04.24 17:05:33 +0530
58. The reference qua the claimant/workman is accordingly answered as under:
"The services of the workman Sh. Arun Kumar S/o Sh.Ram Niwas had been terminated illegally by the management no.2 and he is awarded lumpsum compensation of ₹25,000/- to be paid by the management no.2 to him in lieu of reinstatement."
59. The awarded amount of ₹25,000/- (Rs. Twenty Five Thousand Only) be paid to the claimant/workman by the management no.2 within 30 days from the date of publication of the award failing which the management no.2 will be liable to pay interest @ 8% per annum on the awarded amount till realization.
60. Copy of Award be uploaded on the website of RADC and be also sent to the concerned department through proper channels as per rules.
61. File be consigned to the record room after necessary compliance.
Digitally
signed by
Announced in the Open Court POOJA
POOJA
AGGARWAL
AGGARWAL Date:
today i.e. on 24th April 2025 2025.04.24
17:05:42
+0530
(POOJA AGGARWAL)
Presiding Officer Labour Court -01
Rouse Avenue District Court
New Delhi (sa)
LIR No. 9519/16
Arun Kumar vs Sir Ganga Ram City Hospital & Anr. Page No. 22 of 22