Delhi District Court
Sh. Satya Narain vs M/S Ring Road Honda Bas Engineering Ltd on 6 May, 2008
ID No. 10/2006/2002
1
IN THE COURT OF SH. S.K. KAUSHIK,
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No.10/2006/2002
BETWEEN
Sh. Satya Narain,
S/o Sh. Ram Kishan,
R/o 1954/55,
Malka Ganj,
Delhi - 110007 ..........Workman
AND
M/s Ring Road Honda Bas Engineering Ltd.,
A / 2, Udyog Nagar Industrial Area,
Rohtak Road,
Delhi. .........Management
Date of institution : 16.08.2002
Date of argument : 23.04.2008
Date of award : 06.05.2008
AWARD
1.An Industrial Dispute between the management of M/s Ring Road ID No. 10/2006/2002 2 Honda Bass Engineering Ltd. A - 2, Udyog Nagar Industrial Area Rohtak Road Delhi and claimant Sh. Satya Narain S/o Ram Kishan R/o 1954/55 Malka Ganj Delhi - 110007 was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (1305) 2002 - Lab./ 14890 - 94 dated 08.08.2002 with the following terms of reference :
"Whether the services of Sh. Satya Narain S/o Ram Kishan have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws / Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. Notice was issued to the claimant. On receipt of the notice workman filed his statement of claim alleging that he was working with the management as Driver since 27.09.2000 and his last drawn salary was Rs. 3550/- per month; that he was working diligently and honestly and management had no complaint against him so far as his job was concerned; that management was not giving him legal facilities and he ID No. 10/2006/2002 3 was not given appointment letter; that management terminated his services on 29.8.2001 without assigning any reason; that he was not given any notice nor was paid in lieu thereof; that management did not pay his wages for 29 days of August 2001; that he sent a demand letter through registered AD post on 10.10.2001 but the management did not respond; that he filed an industrial dispute before Conciliation officer Karampura but management did not attend conciliation proceedings; that he is unemployed since then and could not get any job despite his all out efforts. He prayed for his reinstatement with full back wages and also the payment of his wages for 29 days of August 2001.
3. Notice of the claim was given to the management. Management appeared and contested the claim by filing written statement. This written statement was later amended by the management. In the amended written statement management alleged by way of preliminary objection that the reference has been made without application of mind as there is no document / material on record to show that the claimant was in the service of BAS Engineering Pvt. Ltd. and the representative of BAS Engineering Pvt. Ltd. was not given opportunity of explain nor was ID No. 10/2006/2002 4 heard. It is also stated that BAS Engineering Pvt. Ltd. requested Satya Narain verbally before the conciliation officer to produce any document as regard his employment which he failed to do. It is also stated that Satya Narain was never employed by BAS Engineering Pvt. Ltd and so there was no relationship of employee and employer. On merits management reiterated what has been stated by way of preliminary objections and denied each and every claim of the claimant. Management denied that it received any demand letter through registered AD post. Management submitted that the claimant is not unemployed as he is a driver of Brand Promotion Vehicle of DSA ICICI Bank whose office is situated in the service station of Hero Honda by the name of Upper India Trading Co. (Delhi) Pvt. Ltd. 49 C Rama Road New Delhi. Management accordingly prayed for dismissing the claim of the claimant.
4. In rejoinder to the written statement the workman controverted the averments in the written statement and reaffirmed the averments as contained in the statement of his claim. The workman did not file rejoinder to the amended written statement.
ID No. 10/2006/2002 5
5. From the pleadings of the parties following issues were framed:
1. Whether there existed the relationship of employer and employee between the parties ?
2. As per terms of reference.?
6. Both the parties were directed to lead the evidence on the issues.
The claimant filed his affidavit Ex.WW/1A in evidence. He has relied upon, fourteen documents which are Ex.WW1/1 to WW1/14. The workman was cross-examined by the authorized representative for the management.
7. The management filed the affidavit Ex.MW1/A of MW 1 Sh. G. Sriram Head (HR) of the management. Management also filed the affidavit of its Deputy Manager Sh. Rajeev Khurana but he did not appear for cross examination by the claimant. The management also filed the affidavit Ex.MW2/A of MW2 Sh. Lalan Yadav. MW1 and MW2 were cross examined by the authorized representative of the claimant.
ID No. 10/2006/2002 6
8. I have heard the Ld. AR for the parties and have gone through the record. Findings on the issues are as under:-
ISSUE NO.1
9. The claim of the claimant is that he joined service of the management of M/s Ring Road Honda BAS Engineering Ltd. as driver on 27.9.2000 but the management did not issue him any appointment letter. The case set up by the claimant pertaining to the existence of the relationship of employer and employee is that Sh. Bhandari was the Service Manager of the management during the relevant time and he issued him the identity card photocopy of which has been exhibited by him as Ex.WW1/2 by producing the original of the same. The claimant has also relied upon document Ex.WW1/3 which is Form No. 19 used by the management for the purpose of test drive of vehicles, the job cards Ex. WW1/4 to Ex.WW1/14 pertaining to the vehicles received for service in the workshop of the management.
ID No. 10/2006/2002 7
10. Management has alleged that the claimant was not in its service and so there did not exist relationship of employer and employee between the parties. Settled law is that it is for the claimant to establish the relationship of employer and employee. How that onus can be discharged in the matters of labour disputes came up for consideration by the Apex Court in a judgment reported as Food Corporation of India Workers Union Vs. The Food Corporation of India and Another: 1996 (74) FLR 1893 (SC). In this Judgment the Apex Court at page no. 1901 observed as under:
"..........The approach made by the Tribunal, even in the matter of marshalling or considering the material placed before it, seems to be wrong for the following reasons. The Tribunal was apparently of the view, that there should be "evidence" to prove the facts, as per the provisions of the Evidence Act. It is not so. The Tribunal is not a Court. There should be only 'material' and not evidence as required by the Evidence Act........" (Emphasis supplied in bold)
11. Here it is also useful to refer to the judgment of the Apex Court reported as Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union: 2000 Lab. I.C. 1495, wherein Their Lordships in Para 20 of the judgment observed as under:
ID No. 10/2006/2002 8 "The standards and nature of tests to be applied for finding out the existence of Master and Servant relationship cannot be confined to or concretised into fixed formula(s) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case cannot be itself be held to be decisive of the whole issue, since it may depend upon case to case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalise and peg them into any pigeonhole formulas, to be insisted upon as proof of such relationship. This would only help to perpetuate practising unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service." (Emphasis supplied in Bold)
12. In view of the hereinabove referred judgments of the Apex Court it is to be seen whether claimant has discharged the onus of establishing the relationship of employer and employee between him and the management.
ID No. 10/2006/2002 9
13. The Ld. Authorized representative for the management submitted that the claimant has not produced any appointment letter and so his claim of being an employee of the management does not stand established. In reply to this contention the authorized representative for the claimant submitted that the management was not issuing the appointment letter even to the employees of senior position as MW2 during cross examination deposed that after his selection he was not given any formal appointment letter and he was issued appointment letter by the management after 5/6 months of his joining as a Personal Assistant in the management. Authorized representative for the claimant also submitted that the claimant could produce an appointment letter only when he had been issued an appointment letter and when management was not issuing appointment letter promptly even to its employees holding senior position then it is highly doubtful that the management had issued appointment letter to the claimant who was only a driver. On a careful consideration of the rival contentions I hold that the claim of the claimant cannot be doubted just on the ground that he has failed to produce any appointment letter, in case he is able to prove his claim of being the employee of the management through other ID No. 10/2006/2002 10 material.
14. The learned authorized representative for the management also submitted that documents Ex.WW1/3 to Ex.WW1/14 could not have been in the possession of the claimants but these documents should have been in the possession of the management and how the claimant came in possession of these documents should have been explained by the claimant and so on this ground these documents cannot be looked into. I have carefully considered this contention. In my considered view this contention merits no consideration in view of the judgment reported as Pushpadevi M Jatia Vs. M.L. Wadhavan AIR 1987 SC 1748, wherein Their Lordships held that if a document is relevant and then court is not concerned as to how that document was procured. In view of this judgment of the Apex Court I hold that these documents can be taken into consideration by this court for determining the existence of relationship of employer and employee between the parties as claimed by the claimant.
15. Point for consideration is whether the identity card photocopy of ID No. 10/2006/2002 11 which is Ex.WW1/2, Form No. 19 Ex.WW1/3 and the Job Cards Ex.WW1/4 to Ex.WW1/14 can be considered as a material by this court in favour of the claimant for arriving at a decision that he was in the employment of the management. Management has denied the identity card Ex.WW1/2 and has alleged that no identity card was issued to the claimant by the company. Rather management has alleged that the identity card Ex.WW1/2 is a forged document.
16. Point for consideration is whether it appears probable that the identity card Ex.WW1/2 is a forged document. Authorized representative for the management gave a suggestion to the claimant during his cross examination that the company never issued the identity card Ex.WW1/2. The claimant denied this suggestion and deposed that the identity card was given to him by Sh. Bhandari but he did not know his full name. Claimant denied that this identity card was a forged and a fabricated document. Authorized representative for the management also suggested the claimant that it had terminated the service of Sh. Bhandari long ago to which the claimant stated that he had no knowledge. It is significant to note that as per this suggestion in fact Sh. Bhandari was in ID No. 10/2006/2002 12 the employment of the management but the management had terminated his services. It is also significant to note that no such suggestion was given by the authorized representative for the management that signatures of Sh. Bhandari on the identity card Ex.WW1/2 are forged signatures. This identity card shows that it was issued by Sh. Bhandari under his signature and it can be termed as a forged document if the purported signatures on this identity card of Sh. Bhandari are the forged signatures of Sh. Bhandari.
17. Settled law is that the burden to prove does not shift but burden of adducing evidence keeps on shifting and in this regard reference can be made to the judgment reported as Ramendra Narayan Deb Vs. Eighth Industrial Tribunal & Ors.: 45 FJR 529 wherein Their Lordship referred to the following observation by the Privy Council in Kumbhan Lakshmanna Vs. Tangirala Venkateshwarlu: A.I.R. 1949 P.C. 278, at page 537 of the judgment:
"Whether no difficulty arises in arriving at a conclusion....... the question respecting onus recedes into the background, but where the Court ID No. 10/2006/2002 13 finds it difficult to make up its mind the question comes to the foreground and becomes the deciding the factor.......... what is called the burden of proof on pleading should not be confused with the burden of adducing evidence which is described as 'shifting'.
The burden of proof on the pleadings never shifts, it always remains constant. These two aspects of the burden of proof are embodied in section 101 and 102 respectively of the Indian Evidence Act........ When after the entire evidence is adduced the tribunal feels that it cannot make up its mind, as to which of the version is true, it will hold that the party on whom the burden lies has not discharged the burden, but if it has on the evidence no difficulty in arriving at a definite conclusion then the burden of proof on the pleadings recedes into the background."
Their Lordship after quoting the observation of the Privy Council as above held on the same page as under: -
"The Evidence Act does not apply to the industrial adjudications but even so the principle of law enunciated on the burden of proof and onus is a basic principle of law which the industrial Tribunals are also required to follow. If there is no sufficient evidence on the part of the petitioner to prove the existence of facts which would only entitle him to the reliefs prayed for, it must be held that the petition has failed to discharge the burden of proof of pleading which lay on him only."
ID No. 10/2006/2002 14
18. When management has alleged that identity card Ex.WW1/2 is a forged document then it was for the management to establish this fact. Management examined two witnesses namely MW1 Mr. G. Sri Ram and MW2 Sh. Lalan Yadev. MW1 in his affidavit deposed that Sh. Satya Narain was never employed by BAS Engineering Pvt. Ltd. and M/s BAS Engineering did not issue Ex.WW1/2 and it is a forged and fabricated document. It is significant to note that MW1 did not depose that Sh.. Bhandari did not issue the identity card Ex.WW1/2. MW1 deposed that documents Ex.WW1/3 to Ex.WW1/14 do not pertain to the management and these are forged and fabricated documents. In fact this deposition of MW1 is contradicted by MW2 Sh. Lalan Yadav as during cross examination he stated that job cards Ex.WW1/4 to Ex.WW1/14 are of his company. MW2 also deposed that words "Ring Road Honda" is the brand name of the company and "BAS Engineering Pvt. Ltd" is the name of the company and complete name of the management is Ring Road Honda BAS Engineering Pvt. Ltd. He also deposed that the identity card Ex.WW1/2 does not belong to his company and he has no idea if one Mr. Bhandari was the Service Manager of the company in 2001. MW2 denied the suggestion of the claimant that service manager Mr. Bhandari ID No. 10/2006/2002 15 signed the identity card photocopy of which is Ex.WW1/2 but he clarified his denial of this suggestion by voluntarily deposing that he was not deposing that the signature on the identify card were not of Mr. Bhandari but this identity card was not provided by the company. From this voluntary deposition of MW2 Sh. Lalan Yadav it is very clear that signature of Sh. Bhandari on the identity card have not been denied by MW2 but the stand of MW2 is that this identity card was not provided by the company. Thus testimony of MW2 Sh. Lalan Yadav on one hand contradicts MW1 on the documents Ex.WW1/4 to Ex.WW1/14 and on the other hand supports the claim of the claimant that identity card Ex.WW1/2 bears the signature of Sh. Bhandari who was the service manager of the company in 2001. Thus the case of the management that documents Ex.WW1/2 to Ex.WW1/14 are forged documents stands belied.
19. Now coming to the document Ex.WW1/3 relied upon by the claimant in support of his claim of being the employee of the management as driver. MW1 during cross examination admitted that drivers engaged by the company used to deliver the new vehicles which means that the ID No. 10/2006/2002 16 company was in fact employing drivers. The claimant by relying upon document Ex.WW1/3 has set up his case that he was employed as driver in the management. This document was challenged by the management by giving a suggestion to the claimant during his cross examination that the company did not issue Ex.WW1/3 to him. The claimant denied this suggestion and voluntarily deposed that his license number was also mentioned in column No. 5 of Ex.WW1/3. This voluntarily deposed statement of the claimant was not challenged by the management during cross examination and even this was not countered by suggesting him to the contrary. A perusal of document Ex.WW1/3 shows that one car No. DL 4R 180 was sent out of the Service Centre of the company for test drive on 08.10.2000 through driver of the company Mr. Satya Narain and his license number was also mentioned in column number 5 of this document. A careful perusal of the entries in the various columns of document Ex.WW1/3 shows that all these entries are in a running and a matured handwriting and these entries appear to have been made in one go which clearly rules out the possibility of subsequent addition of any entry on this document. Now it was for the management to explain as to under what circumstances the driving ID No. 10/2006/2002 17 license number of the claimant came to be mentioned on this document, if he was not employed as a driver in this company. As a matter of fact this driving license number could come on this document Ex.WW1/3 only when the claimant was in the service of the management as driver. In my considered view management has failed to prove that Ex.WW1/3 is a forged document. I further hold that on the basis of the preponderance of the possibilities document Ex.WW1/3 shows that the claimant was in the service of the management as driver as on 08.10.2000.
20. MW1 during cross examination admitted that whenever an employee entered the company premises his attendance was marked at the gate of the company and the employees marked their attendance in the prescribed form No. 26. MW1 also admitted that Mr. Bhandari was also working with the management as Service Manager during this period and he left the management in 2002 - 2003. MW1 deposed that Form No. 19 used to be delivered to the authorized representative of the company for the purpose of registration of the vehicles. He stated that he could identify the signatures of Mr. Bhandari but he deposed that Mr. Bhandari was not authorized signatory except for the matters relating to ID No. 10/2006/2002 18 the service of the vehicles. MW1 denied that Ex.WW1/4 to Ex.WW1/17 are the job cards prepared by the officials of the company. He stated that he was not aware whether Ex.WW1/2 (identity card) had been signed by Sh. Bhandari being the officer of the company. From this testimony of MW1 it is clear that he was in a position to identify the signatures of Mr. Bhandari but despite that there is no deposition of MW1 that the signature on the identity card Ex.WW1/2 are not the signatures of Sh. Bhandari the then Service Manager. Thus testimony of MW1 does not help the management in proving that the identity card Ex.WW1/2 is a forged document.
21. Testimony of MW1 that employees used to mark their entrance at the entrance gate of the company premises has been contradicted by MW2 Sh. Lalan Yadav because he deposed that the Technicians and other staff mark their attendance in the attendance register maintained by Administration Department of the management. MW2 also stated that the management has also deployed Security Guards in the premises of the management and these Security Guards know the identity of the persons belonging to the management as they daily come across them.
ID No. 10/2006/2002 19 The fact that the claimant came in possession of Ex.WW1/3 being Form No. 19 and Ex.WW1/4 to Ex.WW1/14 being the Job Cards issued by the Service Department of the management shows that claimant came into possession of these documents from the premises of the management company and the claimant could come in possession of these documents only by making his lawful entry in the premises of the management. Documents Ex.WW1/3 to Ex.WW1/14 pertain to the period from 08.10.2000 to 16.03.2001 which means that during this period the claimant was frequently and lawfully entering the premises of the company and this fact considered in juxtaposition with the deposition of MW2 that security guards knew identity of the persons belonging to the management shows that the entry of the claimant in the premises of the company was not being objected or checked as these Security Guard identified the claimant as the employee of the management during this period, which shows that claimant was the employee of the management.
22. The authorized representative for the management also submitted that claimant did not make any complaint about non issue of ID No. 10/2006/2002 20 appointment letter during the relevant time and he did not make such complaint because he was not in the service of the management and so this conduct of the claimant creates a serious doubt on his claim of being the employee of the management. I have carefully considered this contention of the management. In my considered view this submission is without any merit as the workman cannot take the risk of making complaint against the management since a workman is always at the mercy of the management and in this regard reference can be made to the judgment reported as The Executive Engineer, Irrigation Division
- I, Jaipur & Another Vs. Nar Narain: 1994 LLR 538 wherein Their Lordships at page 541 observed as under:
"It is appropriate to take cognizance of the fact that the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet - will of the employee to engage a workman on the terms and conditions which suit the employer."
23. In view of the foregoing discussion I hold that it stands proved that claimant Satya Narain joined the management as Driver on 27.9.2000.
ID No. 10/2006/2002 21 This issue is accordingly decided in favour of the claimant Satya Narain and against the management.
ISSUE NO. 2
24. Ld. Authorized representative for the management submitted that no demand notice was served upon the management and he is not entitled for any relief. In my considered view this contention is without any merit in view of the judgment of the Apex Court reported as Shambhu Nath Goel Vs. Bank of Baroda Jullunder: 1978 (36)FLR 195 and the judgment of Hon'ble High Court of Delhi reported as M/s Daily Tej Pvt. Ltd. Vs. Lt. Governor, Delhi: 1979 (39) FLR 302, wherein it was held that no written demand notice is necessary. In the present case the management has stated in the written statement that M/s BAS Engineering Pvt. Ltd. requested Satya Narain verbally before the conciliation officer to produce any document as regards his employment which he failed to do so which clearly shows that the management was appearing before the Conciliation Officer meaning thereby that it had a ID No. 10/2006/2002 22 notice about the existence of industrial dispute between the management and claimant Satya Narain and so in my considered view it is immaterial whether the demand notice Ex.WW1/7 dated 31.8.2001 alleged to have been sent to the management on 10.10.2001 through registered post has been proved to have been served or not. Accordingly I hold that there is no merit in this contention of learned authorized representative of the management.
25. As discussed while deciding issue No. 1 the claimant joined as driver with the management on 27.9.2000. The claimant has alleged that the management terminated his services without paying any compensation on 29.8.2001. The case of the management is that the claimant was not it's employee so there could be no question of termination of his service. When the claimant has been found to be a workman of the management then obviously the stand taken by the management stands belied and in my considered view there is no reason to disbelieve the claim of the workman that the management of M/s Ring Road Honda BAS Engineering Ltd. terminated his services on 29.8.2001. Now the point for consideration is whether termination of service was illegal and/or ID No. 10/2006/2002 23 unjustified. The termination of the service of a workman without payment of retrenchment compensation under Section 25F ID Act who has rendered a service of 240 days during the period of twelve months just preceding the date of termination of his service is illegal and unjustified. The number of days which work out from 27.9.2000 to 29.8.2001 are more than 240 days. Thus the workman satisfies the required condition of Section 25F ID Act and before termination of his service the provision of section 25F ID Act was required to be complied with . It is not the case of the management that it complied with the requirement of Section 25 F before terminating the service of the workman as the management even denied the relationship of employer and employee between the parties. I, therefore, hold that it stands proved that services of the workman were terminated illegally. This issue is accordingly decided in favour of the workman and against the management.
RELIEF
26. When illegal termination of the service of a workman stands established then the point for consideration is as to what relief is to be ID No. 10/2006/2002 24 granted to the workman. In a judgment reported as Indian Hydraulic Industries Pvt. Ltd. Vs Kishan Devi and Bhagwati Devi and Others:
ILR (2007) I Delhi 219 Their Lordships in paragraph 5 of the judgment observed that it is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct the reinstatement alongwith full back wages and the relief can be moulded according to the facts and circumstances of each case. In my considered view under the facts and circumstances of this case award of compensation in lieu of reinstatement and back wages would be the appropriate relief.
27. Now the point for consideration is as to what would be the adequate compensation amount. The amount of compensation depends upon whether the workman remained unemployed despite his best efforts for searching alternate employment. The management in its amended written statement has alleged that the workman is gainfully employed as driver with Upper India Trading Company (Delhi) Pvt. Ltd. 49 C Rama Road, New Delhi. The workman did not controvert this fact even by filing rejoinder to the amended written statement. The management has ID No. 10/2006/2002 25 placed on record 50 photographs as well the compact disc to show that the workman is gainfully employed as driver. In a judgment reported as Indian Engineering Works (Bombay) Pvt. Ltd. Vs. The Presiding Officer 5th Labour Court and others: 1996 LLR 94 it has been held by Their Lordships that when the management shows that a workman was gainfully employed then it was for the workman to disclose the complete facts and particulars of his gainful employment. The workman has failed to rebut the material placed on record by the management regarding his gainful employment and he has also not furnished any particular about his gainful employment. I therefore hold that there is no reason to disbelieve the management that the workman is gainfully employed. By taking this circumstances into consideration and also on an overall consideration of the facts and circumstances of this case I hold that a compensation of Rs.50,000/- (Rs. Fifty Thousand Only) would be adequate compensation to workman Satya Narain in lieu of reinstatement, back wages, unpaid salary, leave salary and other dues. I accordingly award a compensation of Rs.50,000/- (Rs. Fifty Thousand Only) to the workman. On receiving this compensation amount the workman shall have no claim against the management for reinstatement, ID No. 10/2006/2002 26 back wages, his unpaid salary, gratuity, bonus, leave salary and other dues. The management of M/s Ring Road Honda BAS Engineering Ltd. is directed to pay this compensation amount to the workman within three months of the award becoming enforceable failing which the workman would be entitled to recover the compensation amount with interest @9% per annum from the date of the award. Award stands passed and reference stands answered accordingly.
28. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). Announced in Open Court on this 06th day of May, 2008.
S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.