Delhi District Court
Hence vs Engg. Mazdoor SanghRespondent (2007) on 30 March, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX KARKARDOOMA
COURTS, DELHI.
Ref. No. :F.24 (1947)/2002Lab./2001621
Dated :25.10.2002
I.D.No. :330/06
Unique Case ID No. 02402C0164952003
1. Sh. Sushil Kumar, S/o Sh.Laxmi Narang Sharma,
2. Sh. Thomas Daniel, S/o Sh. P.T. Daniel,
3. Sh. Ram Kumar, S/o Sh. Raghnandan Mahto,
4. Sh. Satish Kumar, S/o Sh. Rattan Singh,
5. Sh. Pradeep Chaudhary, S/o Sh. Chander Pal Singh,
6. Sh. Shri Pal, S/o Sh. Ram Singh
C/o WZ8, Block House No.4, Prem Puri,
Uttam Nagar, New Delhi. .................Workmen
Versus
1. M/s Centre for Development of Telematics,
Room No.904, Akbar Hotel, Chanakyapuri,
New Delhi.
2. M/s Vijay Electricals,
338, Kangra Niketan, Vikaspuri,
New Delhi. ...............Managements
Date of Institution of the case : 10.01.2003
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. Sushil Kumar, Thomas Daniel, Ram
I.D No. 330/06 PAGE NO.1 OF 78
Kumar, Satish Kumar, Pradeep Chaudhary and Shri Pal, raised an
industrial dispute regarding the termination of their services by the
managements of M/s Centre for Development of Telematics and M/s
Vijay Electricals. 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. Sushil Kumar S/o Sh.Laxmi Narang
Sharma,Sh. Thomas Daniel S/o Sh. P.T. Daniel, Sh.
Ram Kumar S/o Sh. Raghnandan Mahto, Sh. Satish
Kumar S/o Sh. Rattan Singh, Sh. Pradeep Chaudhary
S/o Sh. Chander Pal Singh and Shri Pal S/o Sh. Ram
Singh 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
except the workman Sh. Shri Pal. It is stated by the workmen in their
statement of claim that the above said workmen were engaged by the
management no.1 through contractor no.2 in the premises of M/s C
Dot (Centre for Development of Telematic) as an Electrician and M/s
CDot having a various branches in different places in India and more
than 30 Electrician working at present; that the agreement was made
between CDot and Contractor management No.2 M/s. Vijay
I.D No. 330/06 PAGE NO.2 OF 78
Electricals 338, Kangra Niketan, Vikas Puri, New Delhi for operation
and maintenance of electric installation at CDot, Delhi; that the CDot
however knowing that the job performed by the workers is a
permanent and perennial nature of works with ulterior motive to
deprive them of security of job and equal employed the workers as
vensibility through the contractor; that the contract was valid for
April, 2002; that the above said workmen were engaged by the various
contractors in CDot; that CDot having full control on them; that the
contractors time to time changed but the workers remained working
till 20.12.2001; that the workmen performed the duty for operation and
maintenance of electricals installations in CDot; that the workmen
were performing the duty with the management for last many years
without any break and did the work with efficiency for CDot and they
performed their full time duty from 09.00 A.M. to 07.00 P.M.; that
many time they were asked to work normally working hours and on
holiday and Sunday; that during auditing period they were made to
work day and night under the contractor M/s Vijay Electricals; that
more than 30 workers as electrician alongwith above said workmen
doing the work with the management; that they worked for long time
but they have not regularized in service and not provided legal
facilities to them like P.F., ESI, Bonus increment by the management;
that the abovesaid workmen raised their demand before management
for regularization and provide legal facilities with minimum wages
I.D No. 330/06 PAGE NO.3 OF 78
which is provided regular employees in CDot but everytime the
management assured that they will be considered for regularization in
coming year but it was not done so far; that then the workmen filed
Writ Petition No. 5276/2002 which was dismissed with liberty on
14.12.2001 according to STELL Authority Judgment (JT 2001 (7) SC
268 decided on 30th August, 2001; that then the case was filed before
ALC, Kasturba Gandhi Marg, New Delhi during the proceeding the
above said workmen were terminated by the management on
20.12.2001; that the workmen sent the legal notice to the management
through their counsel Sh.Sundeshwar Lal for illegal termination
thereafter on 26.12.2001 reply was sent for report of duty
immediately; that thereafter the letter was sent to the worker by post
on 02.01.2002 by the management no.2 for come with clarification at
work; that as per reply of management no.2 the abovesaid workmen
went to the management no.1 stopped them from outside the gate all of
them waiting for whole day; that neither management called them nor
management no.2 came; that the above said workmen were terminated
on 20.12.2001 without notice and pending proceeding before ALC
which is illegal and violation of law; that since 20.12.2001 all of them
were unemployed, inspite of all efforts for work; that the worker sent
application on 13.08.2001 before Central Labour Advisory Board to
issue notification under Section 10 of the Contract Labour (Reg. &
Abo) Act, 1970 for probating the employment of contract Labour.
I.D No. 330/06 PAGE NO.4 OF 78
Hence, they have claimed reinstatement with full back wages and
continuity of their services.
Notice of the filing of statement of claim was sent to the
managements. The management no.1 had appeared and contested the
claim filed by the workmen by filing its written statement. In the
written statement filed by the management no.1, it had taken the
preliminary objections that the claim in its present form is not
maintainable against the Opposite party No.1 because no relationship
of master and servant existed between the parties; that 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. 5276 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 on 14.12.2001 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; that 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
I.D No. 330/06 PAGE NO.5 OF 78
for the claimants to raise an industrial dispute against the Opposite
Part No.1 with whom no relationship existed; that the dispute is bad
due to misjoinder 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 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 have themselves admitted that they were
engaged through Opposite Party No.2 who has also been impleaded in
this case; that it has been admitted by the claimants that contractors
were having full control over them; that so is also envisaged from the
terms and conditions of the contract entered between the Opposite
Parties, besides being it a factual position; that none of the claimants
were ever employed by the Opposite Party No.1 on its rolls; that it is
denied that the claimants worked without break and did the work
I.D No. 330/06 PAGE NO.6 OF 78
efficiently; that none of the claimants performed their duties day and
night or on holidays and Sundays and all such averments are frivolous
and misleading; that the claimants may be put to strict proof in this
regard; that after having entered into a contract with Opposite Party
No.2, it was his responsibility to provide adequate manpower of his
choice, suitability, and preference on the existing terms & conditions;
that one of the main terms and conditions of the contract had been that
the 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 on
the part of 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 labours; 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 & ESI to
his contractual labours; 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 wages 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 it is
denied that the Opposite Party No.1 had assured the claimants
I.D No. 330/06 PAGE NO.7 OF 78
regularization in service as all the claimants were the outworkers of
the Opposite Party No.2 and no relationship ever existed between the
claimants and the Opposite Party No.1; that the claimants were not
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 were denied to them by Opposite Party No.1; that the
Opposite Party No.1, hence, reserves its right to submit elaborately if
the claimant specify the alleged denied facilities, if any; that it is
denied that Opposite Party No.1 terminated the claimants on
20.12.2001; that no legal notice was received from the claimants; that
moreover, the claimants being outworkers of the Opposite Party No.2
had no right to seek reliefs from the Opposite Party No.1 as no
relationship existed between the parties; that the claimants were not
employed by the Opposite Party No.1, as alleged; that all the claimants
were the outworkers of the Opposite Party No.2 and no relationship
ever existed between the claimants and the Opposite Party No.1; that
admittance on the part of the claimants showed that they desired a
notification u/s 10 of CLA under the present situation when no
notification existed in respect of them concerning the Opposite Parties;
that the appropriate Government did not issue Notification u/s 10 of
CLA because the process and operation was neither of perennial nature
nor it called for employing wholetime workmen; that in this respect,
Section 10 of CLA is referred to and, in particular, the Explanation
I.D No. 330/06 PAGE NO.8 OF 78
thereto, wherein it is laid down that the decision of the appropriate
government shall be final as regards to the question of perennial
nature; that the operation and maintenance of electrical installations at
the rented premises was neither permanent nor of sufficient duration;
hence full time workmen were not required for the same; that terms of
reference may be decided against the claimants as they are not entitled
to any reliefs, whatsoever, in respect of Opposite Party No.1. All other
allegations are denied. Hence it is prayed that the statement of claim
be dismissed.
In the written statement filed by the management no.2, it
has taken the preliminary objections that the claim of the applicants is
not maintainable, on the ground that the services of the applicants
were never terminated by the management at any point of time; that
the applicant Sh. Pardeep Chowdhary has been absenting from the
duty w.e.f. 22.12.2001 unauthorizedly; that whereas the applicant Sh.
Satish Kumar has been absenting from the duty w.e.f. 20.09.2001
unauthorizedly; that the applicants S/Sh. Ram Kumar, Sushil and
Thomas Daniel too have been absenting from their duties without any
intimation or information to the management w.e.f. 20.12.2001; that
all the applicants have been written several letters by the management
to report for duty, but the applicants neither joined the duty, nor cared
to send any written explanation of their absence from the duty; that the
applicants are not entitled for any relief, whatsoever against the
I.D No. 330/06 PAGE NO.9 OF 78
management; that the claim of the applicants is not maintainable on
the ground that the applicants did not raise any demand before raising
the industrial dispute; that the claim of the applicants is not
maintainable on the ground that the applicants failed to resume the
duty, inspite of written 'offer' to the applicants during the conciliation
proceedings; that the 'reference' as such is without application of mind,
in haste, and under the pressure of the union for the reason that the
applicants were never refused/denied duty by the management; that the
claim of the applicants namely S/Sh. Thomas Daniel, Ram Kumar,
Satish Kumar and Pardeep Chaudhary is not maintainable, on the
ground that these applicants were not regular workers of the
management; that these applicants worked less than 240 days with the
management, hence, their claim is liable to be rejected. On merits, it is
stated that the respondent no.2 entered into agreement with the
respondent no.1 and that agreement came to end in April, 2002, under which the applicants were asked to work in the premises of the management no.1 by the management no.2; that the applicants were appointed and paid their monthly wages by the management no.2; that the management nos.1 and 2 entered into agreement for operation and maintenance of electric installation at CDot, Delhi; that the applicants were not regular employees of the management no.2; that four out of five applicants, who had worked for few months for the management no.2; that their service tenure with the management no.2 is less than I.D No. 330/06 PAGE NO.10 OF 78 240 days in total; that the applicants used to work 8 hours a day; that the applicants never worked on holiday and Sunday as averred; that the applicants never worked or made to work day and night as alleged; that all the legal and statutory benefits were extended to the applicants by the management no.2 regularly and religiously; that all the allegations leveled against the management no.2 are unfounded, untenable, baseless and hence denied; that the Writ Petition No. 5276/2002 filed by the applicants was dismissed by the Hon'ble High Court; that the applicants were being given all the legal and statutory benefits, minimum wage etc. by the management no.2 religiously, till the applicants worked with the management; that it is denied that the management no.2 terminated the services of the applicants on 20.12.2001 or at any point of time; that the applicants in fact started absenting from the duty unauthorizedly and caused lot of inconvenience to the management no.2 by their unintimated absence from the duty; that the applicants are under the wrong and false notion that they would be absorbed by the Govt. Undertaking by absenting from the duty; that the applicants were offered duty unconditionally before the Conciliation Officer by the management no.2 but the applicants declined the offer of the management no.2 to report for duty; that all the allegations of the applicants against the replying management are fabricated, after thought, motivated and hence denied; that the management never denied/refused duty to the applicants; that I.D No. 330/06 PAGE NO.11 OF 78 the applicants were written several letters by the management no.2 to report for duty but the applicants failed to turn up for the duty; that it is denied that the gate keeper of the management no.1 06.01.2002 denied entry to the applicants, as alleged; that the gate keeper of the management no.1 never stopped the applicants; that all the allegations of the applicants are after thought, fabricated, cooked up and hence denied; that the management never terminated the services of the workman at any point of time; that the applicants must be gainfully employed and earning handsomely; that the applicants are not entitled to any relief against the management no.2 much less the relief claimed of reinstatement with the attendant benefits. All other allegations are denied. Hence it is prayed that the statement of 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 the following issues were framed:.
(i)Whether there existed a relationship of employee and employer between the workmen 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.
I.D No. 330/06 PAGE NO.12 OF 78
In support of their case, the workmen S/Sh. Sushil Kumar, Thomas Daniel, Ram Kumar Mahto, Satish Kumar and Pradeep Chaudhary have appeared as WW1 to WW5 respectively in workmen evidence, tendered their affidavits by way of evidence Exts. WW1/A to WW5/A respectively in the same as also relied upon documents Exts.WW1/1 to WW1/10, on record. In their affidavits by way of evidence Exts. WW1/A to WW5/A they have reiterated the contents of their statement of claim.
Thereafter, workmen evidence has been closed, 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 MW1 in its management evidence, who has tendered her affidavit by way of evidence as Ex.MW1/A in the same as also relied upon document Ex.MW1/1, on record. In her affidavit by way of evidence she has reiterated the contents of the written statement of the management no.1.
After examining MW1, evidence on behalf of the management no.1 has been closed, on record.
The management no.2 has examined Sh. Jagdish Chand, Ahlmad from Labour Department, 5, Sham Nath Marg, New Delhi as MW 2 in its management evidence, who has stated that he has brought the summoned record of file No.F.24(1947)/02/Lab.; that the copy of reply filed by the management M/s Vijay Electricals, before the I.D No. 330/06 PAGE NO.13 OF 78 Conciliation Officer was Ex.MW2/1 which was compared by him from the original produced by him on that day in the Court.
The management no.2 has also led the evidence of Sh. Vijay Singh, Proprietor of the management no.2 as MW3 in its management evidence, who has tendered his affidavit by way of evidence Ex.MW3/A in the management evidence on behalf of the management no.2 as also relied upon documents Exts.MW3/1 to MW3/19 (Exhibition of documents is objected to by AR for the workman on the ground of mode of proof of admissibility stating that all the documents exhibited on that day by the witness were photocopies), on record. However, it is seen from the record that the witness has subsequently deposed in his cross examination on behalf of the workmen that he had brought the originals of Exts.MW3/1 to MW3/10 and Exts.MW3/12 to MW3/19 on that day to the Court which had been seen by the Ld.AR for the workmen. Ex.MW3/11 being the photocopy of telegram form original of which was sent to the workmen. In his affidavit by way of evidence Ex.MW3/A the MW3 has reiterated the contents of the written statement of the management no.2.
After examining MW3, evidence on behalf of the management no.2 has been closed, on record, and the case fixed for hearing of final arguments.
However, during the pendency of the case for hearing of I.D No. 330/06 PAGE NO.14 OF 78 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.
Final arguments have been heard.
It is the submission of the AR for the workmen that the workmen viz. WW1 Sh. Sushil Kumar, WW2 Sh. Thomas Daniel, WW3 Sh. Ram Kumar Mehto, WW4 Sh. Satish Kumar and WW5 Sh. Pradeep Chaudhary, who have appeared in the workmen evidence in support of their statement of claim and deposed on their behalf were the employees of the management no.1 M/s CDot at New Delhi as claimed by them vide their statement of claim as also their affidavits by way of evidence Exts.WW1/A to WW5/A in workmen evidence through the management no.2/Contractor M/s Vijay Electricals at New Delhi, the managements mentioned in the instant reference and were employed at the premises of the management no.1 at Delhi/New Delhi as electricians; that the agreement was entered into between the I.D No. 330/06 PAGE NO.15 OF 78 management no.1 and the management no.2 for operation and maintenance of electrical installations at the premises of the management no. 1 at New Delhi; that the management no.1 knowing that the job performed by the workmen was of a permanent/perennial nature with ulterior motive to deprive the workmen of security of job and equality of employment had employed the workmen through the contractor; that the contract was valid for April, 2002; that the workmen were engaged by the various contractors in the management no.1 which was having full control over them; that the contractors changed from time to time but the workmen remained working till 20.12.2001; that the workmen had been performing their duties with the management no.1 for the last many years without any break and did the work with efficiency for the management no.1 and they performed their full time duty with the said management w.e.f. 09.00 A.M. to 07.00 P.M.; that there were more than 30 workers as electricians along with the above said workmen doing the work with the management no.1; that they worked for long time but they have not been regularized in service and neither have been provided legal facilities like P.F., ESI, Bonus increment by the management no.1 to them; that the abovesaid workmen raised their demand before management for regularization and providing of legal facilities with minimum wages which were provided to the regular employees in the management no.1 but everytime the management assured that they will I.D No. 330/06 PAGE NO.16 OF 78 be considered for regularization in coming year but it was not done; that the workmen had filed their claim before ALC, Kasturba Gandhi Marg, New Delhi during the proceeding of which, the above said workmen were terminated by the management on 20.12.2001; that the workmen sent the legal notice to the management through their counsel Sh. Sundeshwar Lal for illegal termination thereafter on 26.12.2001 reply was sent for report of duty immediately; that thereafter the letter was sent to the worker by post on 02.01.2002 by the management no.2 to come with clarification at work; that as per reply of management no.2 the above said workmen went to the management no.1 but were stopped outside the gate; that all of them waiting for whole day; that neither management called them nor management no.2 came; that the above said workmen were terminated on 20.12.2001 without notice and pending proceeding before ALC which is illegal and in violation of law; that since 20.12.2001 all of them were unemployed, inspite of all efforts for work.
It is further the submission of the AR for the workmen that the alleged agreement arrived at between the management nos.1 and 2 for employing the services of the workmen with the management no.1 is illegal and sham document since it has been executed in violation of the provisions of Section 7 and 12 of the Contract Labour (Regulation & Abolition) Act, 1970 since the management no.1 has not proved, on record, that it was registered with the competent authority for I.D No. 330/06 PAGE NO.17 OF 78 employing contract labour nor the management no.2 has proved, on record that it was a licensed contractor under the competent authority for providing contract labour to the principal employer viz. the management no. 1. as required vide the provisions of the abovesaid Act, as abovesaid.
It is further the submission of the AR for the applicant/workmen that the workmen by virtue of being working in the premises of the management no.1 w.e.f. the dates alleged in their respect, on record and their services allegedly having been terminated on the part of the management no.1 on the date alleged, were for all practical purposes the employees of the management no.1 and not of the management no.2 as alleged by the management no.2 and were entitled to be reinstated in service with the management no.1 along with full back wages, continuity of service and all consequential benefits as prayed by them vide their instant statement of claim against the managements. AR for the workmen has also filed written submissions in support of his submissions on behalf of the workmen, as abovesaid, as also relied upon citations viz. (i) Oil & Natural Gas Corpn. Ltd.Appellant Vs. Engg. Mazdoor SanghRespondent (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 I.D No. 330/06 PAGE NO.18 OF 78 Board, Ukai Petitioner Vs. Hind Mazdoor SabhaRespondent 1991 LLR 572 (Gujarat High Court); (v) Jaswant Sugar Mills Ltd., Meerut Appellant Vs. Shri Badri Prasad and OthersRespondents 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, however, argues to the contrary and submits that it is the case of the management no.1 vide its written statement to the statement of claim of the workmen filed, on record, that there was no relationship of master and servant or employer and employee between the management no.1 and the workmen since the workmen had never been in the employment of the management no.1 at any point of time; that the workmen had approached the Hon'ble High Court of Delhi vide Writ Petition No. 5276/01 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 of the management no.1, however none of their prayers were found tenable and the Writ Petition was disposed of on 14.12.2001 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 the Contract Labour I.D No. 330/06 PAGE NO.19 OF 78 (Regulation & Abolition) Act, 1970 had been issued prohibiting engagement of contract labour concerning the establishment of Opposite Party/management no.1 and nor the Opposite Party/management no.1 availed the services of the contractor Opposite Party/management no.2 towards discharge of a statutory obligation; that no cause of action had ever arisen for the claimants to raise an industrial dispute against the Opposite Party/management no.1 with whom no relationship existed; that the provisions of Contract Labour (Regulation & Abolition) Act, 1970 have no applicability to the present set of facts and circumstances so much so that the Opposite Party/management no.2's contract was essentially a job work contract and all the claimants were out workers of the Opposite Party/management no.2.
It is further the submission of the AR for the management no.1 that appropriate Government did not issue Notification u/s 10 of Contract Labour (Regulation & Abolition)Act, 1970 in respect of the management no.1 because the process and operation was neither of perennial nature nor it called for employing wholetime workmen; that the operation and maintenance of electrical installations at the rented premises was neither permanent nor of sufficient duration, hence full time workmen were not required for the same. It is further the submission of the AR for the management no.1 that no evidence has been led by the workmen, on record, that they were in the employment I.D No. 330/06 PAGE NO.20 OF 78 of the management no.1 for the periods as alleged by them. It is further the submission of the AR for the management no.1 that the establishment of the management no.1 was not such an establishment to which the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 applied since admittedly the said Act is applicable vide the provisions of SubSection (4) of Section 1 of the same "(a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour (b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen" which factum has admittedly not been proved on the part of the workmen qua the management no.1 or even the management no. 2 in their workmen evidence by way of their affidavits by way of evidence Exts.WW1/A to WW5/A as also vide their cross examination of the MW1 in management evidence, on record, and accordingly, it cannot be said that the management no.1 was required to register itself with the competent authority under the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 for employing employees/labour on contract basis. It is further the submission of the AR for the management no.1 that no evidence has come, on record, that the management no.1 was employing twenty or more employees/workmen on contract basis at any/all of its premises at Delhi/New Delhi at any point of time during the period in question and I.D No. 330/06 PAGE NO.21 OF 78 accordingly it cannot be said to have acted in contravention of the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 in the matter of employment of the workmen through Contractor/management no.2 during the period in question, as alleged.
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) 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. I.D No. 330/06 PAGE NO.22 OF 78 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 & 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 I.D No. 330/06 PAGE NO.23 OF 78 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 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.
It is the submission of the AR for the management no.2 that I.D No. 330/06 PAGE NO.24 OF 78 the workmen were the employees of the management no.2 Contractor and had abandoned their services with the management no.2 by not reporting for duties with it even pursuant to receipt of letters/notices issued by the management no.2 to the workmen in this regard and accordingly, the services of the workmen had not been terminated as alleged and in fact they had abandoned their services with the management no.2 by not reporting for duties with it despite service of notices of the management no.2 upon them in this regard as has come, on record, by way of the evidence led by the management no.2 in its management evidence, on record.
AR for the management no. 2 has also filed written submissions as also relied upon citations viz.(i) Ajaib Singh Vs. The Sirhind Cooperative MarketingcumProcessing Service Society Ltd. & Anr. 1999 LLR 529 Supreme Court of India, (ii) Parshuram Shah Petitioner Vs. Govt. of NCT of Delhi & Anr.Respondents Writ Petition (C) No.5986 of 2007, Delhi High Court (iii) M/s Trina Engineering Company (P) Ltd. Vs. The Secretary (Labour) & Others, 2006 LLR 51 Delhi High Court, (iv) Triloki Nath (Shri) vs. Sh. Dharam Paul Arora and Anr. 2007 1 LLJ 578 Delhi, (v) Shri Raju Sankar PoojaryPetitioner Vs. Chembur Warehouse Company and AnotherRespondents, 2003 LAB.I.C. 2937 (vi) Sonal Garments Vs. Trimbak Shankar Karve, 2003 LLR 5 Bombay High Court, (vii) Competition Printing Press Vs. Shriut Jalprakash Singh and another, I.D No. 330/06 PAGE NO.25 OF 78 2001 LLR 768, Bombay High Court (viii) NRK House, Mumbai Petitioner Vs. P.V.Tommy C/o Akhil Bhartiya General Kamgar Union and Anr.Respondents, 2008 III CLR 335, In the High Court of judicature at Bombay (ix) State of PunjabAppellant Vs. Jagbir Singh Respondent, 2004 III CLR 969, Supreme Court of India (x)Executive Engineer ZP Engg. Divn.& Anr.Petitioner Vs. Digambara Rao etc. Respondent, 2004 III CLR 972, Supreme Court of India, (xi) Velan Saw Mills (represented by N. Mangalam Proprietrix Vs.1.Presiding Officer, Labour Court, Tiruchirapalli and 2.V.Chinnan, 2001 LLR 115, Madras High Court (xii) Tej Pal Vs. Gopal Narain and Sons and another, 2008 (5) L.L.N.254 (Case No. 120) In the High Court of Judicature at Delhi, (xiii) M/s Trina Engineering Company (P) Ltd. Vs. The Secretary (Labour) & Others, 2006 LLR 51 Delhi High Court
(xiv) Sh. Chand SinghPetitioner Vs. Sigma Industries Corporation Respondent 2013 (1) LLN 457 (Delhi) and (xv) Judgment dated January 22, 2012 passed by the Hon'ble High Court of Delhi in W.P. (C) 21994/2005 titled Mgmt. of M/s Amazone Exports Pvt. Ltd. Petitioner Vs. Secretary Labour and Anr. Respondents.
My findings on the issues 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 I.D No. 330/06 PAGE NO.26 OF 78 application moved on behalf of the applicant/management no.1 in this 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. I.D No. 330/06 PAGE NO.27 OF 78
It is further the submission of the AR for the workmen that 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 I.D No. 330/06 PAGE NO.28 OF 78 moved on behalf of the respondent/management no. 1, as above said, 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 Mark A allegedly in this regard have I.D No. 330/06 PAGE NO.29 OF 78 not been proved on the part of the respondent/management no. 1 in its 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 I.D No. 330/06 PAGE NO.30 OF 78 Court of Delhi relied upon by the Hon'ble High Court of Delhi vide its 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;" I.D No. 330/06 PAGE NO.31 OF 78
11. By reason of the said rule the power which can be exercised by the Central Government has been 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"
I.D No. 330/06 PAGE NO.32 OF 78
7. Thus the effect of the judgment of this Court in MCD Vs. Mahavir (supra) read in consonance with Rule 2 (f) of the 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. Sushil Kumar, Thomas Daniel, Ram Kumar Mahto, Satish Kumar, Pradeep Chaudhary have appeared in the workmen evidence as WW1, WW2, WW3, WW4 and WW5 respectively, tendered their affidavits by way of evidence Exts. WW1/A, WW2/A, WW3/A, WW4/A and WW5/A respectively as also relied upon documents Exts. WW1/1 to WW1/10 as also Exts.WW2/1 to WW2/3, on record. In their affidavits by way of evidence Exts. WW1/A, WW2/A, WW3/A, WW4/A and WW5/A they have reiterated the contents of their statement of claim interalia to the effect that they were working with the management no.1 since 1992/1993/1997/1998 respectively and performing the duties as Electrician through different contractors; that the workmen were I.D No. 330/06 PAGE NO.33 OF 78 engaged as electrician by the management no.1 through different contractors who changed from time to time but the workmen performing their duties in the premises of management no.1 since the said years respectively; that the workmen performed their duties from 09.00 A.M. to 07.00 P.M. and did the overtime also at many times, they were asked to work normally working hours and on holiday and Sunday as per agreement; that the last drawn salary of the workmen were Rs. 3,400/, 2,700/, 2,700/, 2,400/ per month respectively but the management did not provide PF, ESI and other legal facilities which was against the law; that the workmen performed their duties honestly with the management without any break since date of engagement; that the work performed by them was of permanent and perennial nature but the management no. 1 did not appoint them on the same with the ulterior motive to deprive them of security of job; that the workmen raised their demands before the management but the management ignored their legal demand; that then they filed Writ Petition No. 5276/2001 before High Court of Delhi for being considered as regular employees of the management no.1; that the said petition was dismissed with liberty to file the case before appropriate authority; that the workmen filed a case before the ALC, Kasturba Gandhi Marg, New Delhi, during the pendency of which, their services were terminated by the management on 20.12.2001 without any notice when the agreement was in existence till the year 2002; that the I.D No. 330/06 PAGE NO.34 OF 78 workmen had sent legal notice on 26.12.2001 to the managements; that the management gave reply to the workmen to report for duty; that as per the reply the workmen went to office to report but the gate keeper of the management did not allow them to enter into the office; that the workmen called a number of times to the management but the management had not listened to their calls; that since 20.12.2001, the workmen are unemployed; that they had given representation before the Central Labour Advisory Board to issue notification under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 for prohibiting the employment of contract labour as also have relied upon documents Ex.WW1/1 being copy of agreement/Annual Maintenance Contract dated 27.04.2000 entered into between the management no.1 and the management no.2 for operation and maintenance of electrical installation at CDot, Delhi for the period of two years w.e.f. 1st May, 2000 to 30th April, 2002 with the stipulation that the performance will be reviewed after one year and if found satisfactory, the contract will be extended for 2nd year; Ex.WW1/2 being copy of a certificate dated 10.07.1999 of the management no.1 in respect of workman Sh. Sushil Kumar to the effect that " this is to certify that Mr. Sushil Kumar S/o Sh. Laxmi Narayan, R/o WZ4, SBlock, Parampuri, Uttam Nagar, New Delhi110059 has been entrusted the job of maintenance of electrical installation at our premises through our electrical contractor M/s S.R.S. Engineers, 164, Satya Niketan, New I.D No. 330/06 PAGE NO.35 OF 78 Delhi110021 since October, 1992 till February, 1999. At present he is working through our electrical contractor M/s Vijay Electrical, C5, Double Storey, Motia Khan, Pahar Ganj, New Delhi110055 since March, 1999. Mr. Sushil is a hard working man. I wish him success throughout his life. Sd/ Kulwant Singh, Manager (Maint.)";Ex.WW1/3 being copy of the Annual Statement of EPF Return of M/s SRS Engineers, 164, Satya Niketan, New Delhi110021 for the period w.e.f. 01.04.1998 to 31.03.1999 in respect of its employees; Ex.WW1/4 being copy of gate pass of the management no. 1 dated 13.08.2001 in respect of fan motor, quantity (2); Ex.WW1/5 being copy of gate pass of the management no.1 dated 04.06.2001 in respect of exhaust fan motor, quantity (2); Ex.WW1/6 being copy of gate pass dated 17.08.2001 of the management no.1 in respect of its cordless MIC Shure Make, quantity (1); again Ex.WW1/6 being copy of letter dated 06.01.2002 allegedly of one Sh. Tara Chand, Security Guard, S.L.V.Office, 39 Pusa Road, Delhi110005; Ex.WW1/7 being copy of a letter dated 06.01.2002 allegedly of the workmen to the SHO, Police Station Karol Bagh, New Delhi to the effect that they had been called at the instance of the management no.2 to the management no.1 but had not been allowed to enter the premises of the management no.1 by the security guard present therein; Ex.WW1/8 Colly being copies of receipts of local telephone calls of PCO; Ex.WW1/9 Colly being copies of receipts of deposit of cash in the bank account of the I.D No. 330/06 PAGE NO.36 OF 78 workman Sh. Sushil Kumar in Canara Bank, Branch CDot, Pusa Road on the dates as mentioned on the same; Ex.WW1/10 being copy of front page of the pass book of the saving bank account of the workman Sh. Sushil Kumar of Canara Bank, Branch CDot, Pusa Road, New Delhi; Ex.WW2/1 being copy of certificate dated 23.11.1994 of the management no.1 in respect of the workman Sh. Thomas Daniel to the effect that " this is to certify that Mr. Thomas Daniel S/o Sh. P.T. Daniel has been entrusted the job of maintenance of electrical installation at our premises through our electrical contractor S.R.S. Engineers since 11.08.1993. Mr.Thomas Daniel is a hard working man. I wish him success throughout his life. Sd/ Kulwant Singh, Manager (Maint.)"; Ex.WW2/2 being copy of a letter dated 14.03.1995 of the management no.1 to the workman Sh. Thomas Daniel appreciating his work of extinguishing fire in the premises of the management no.1 on 08.03.1995 at 1645 Hrs; Ex.WW2/3 being copy of internal letter/note dated 20.12.1995 of management no.1 appreciating the work of Sh. Thomas Daniel as electrician in the premises of the management no.1.
These witnesses have been crossexamined at length on behalf of the management no.1 in which WW1 has deposed inter alia that he was working from October, 1992 till December, 2001; that during this period, he had worked under three contractors, namely M/s S.R.S. Engineers, M/s Vijay Electricals and the name of other I.D No. 330/06 PAGE NO.37 OF 78 contractor was not known to him; that he was not registered with any employment exchange in 1992; that he was deputed to work at 39 Pusa Road Building, Akbar Hotel and Delhi Cantt.; that in case of emergency, he was deputed to these buildings to rectify the breakdown; that he was stopped from duties on 20.12.2001 on the reason that he was terminated by contractor or management; that thereafter, the contractor called him for duties at Pusa Road Building where he reported for duty on 06.01.2002 in reply to the letter dated 02.01.2002 of the contractor; that the industrial dispute was pending even before his termination; that he was 10th class pass having two year diploma in Electrical Trade from ITI; that he has one son of five years old; that at present, he was working as daily wager, however, his work was not of permanent nature; that he raised an industrial dispute demanding all the facilities including PF; that it was wrong to suggest that he was absent unauthorizedly from his duties from 20.12.2001; that it was wrong to suggest that he was deposing falsely.
WW2 has deposed in his cross examination on behalf of the management no.1 that he was working from 13.08.1993 till 20.12.2001; that he worked under two contractors during the said period; that the contractors were M/s SRS Engineers and M/s Vijay Electrical; that he was not registered with employment exchange; that Sh. Kulwant Singh, Maintenance Manager got him employed; that he was deputed to work at 39 Pusa Building and 11/6B, Shanti Chamber, I.D No. 330/06 PAGE NO.38 OF 78 Pusa Road, New Delhi; that he used to be deputed for electrical maintenance at these buildings; that he was stopped from duties on 20.12.2001; that he was informed that the management had refused to take him on duty; that thereafter, he filed an industrial dispute against his services against Vijay Electrical also; that he was 10th class passed and having two year diploma of electrical Trade from ITI; that he had one daughter of 12 years; that he was unemployed at present and supported by his brother; that his family was in the village and supported by his parents; that it was wrong to suggest that he did not report for duty after 20.12.2001; that it was wrong to suggest that he was deposing falsely.
WW3 has deposed in his cross examination on behalf of the management no.1 that he was employed from Summer of 1997 till 20.02.2001 with the management; that he did not remember the names of the contractors, under whom he worked during the aforesaid period; that he heard the name of M/s Vijay Electrical Contractor; that the supervisor used to pay the salary in cash after 7th of every month; that he was not educated; that he was never registered with any Employment Exchange; that he worked only at 39, Pusa Road, New Delhi; that he was stopped from his duties in the month of December, 2001 by the security guard; that no reason was given to him for his removal from the services; that he was unemployed and doing casual work earning about Rs. 400 per month; that it was wrong to suggest I.D No. 330/06 PAGE NO.39 OF 78 that he was absent unauthorizedly from his duty from 20.12.2001.
In his cross examination on behalf of the management no. 1 WW4 has deposed that he was working from 13.08.1993 till 20.12.2001; that he worked under two contractors during the said period; that the contractors were M/s SRS Engineers and M/s Vijay Electrical; that he was not registered with Employment Exchange; that Sh. Kulwant Singh, Maintenance Manager got him employed; that he was deputed to work at 39 Pusa Building and 11/6B, Shanti Chamber, Pusa Road, New Delhi; that he used to be deputed for Electrical Maintenance at these buildings; that he was stopped from duties on 20.12.2001; that he was informed that the management had refused to take him on duty; that thereafter, he filed an industrial dispute against his services against Vijay Electrical also; that he was twelfth class passed and having two year diploma of Electrical Trade from ITI having electrical licence; that he had two children; that he was unemployed at present; that his services were terminated by the management on 20.12.2001.
In his cross examination on behalf of the management no. 1 WW5 has deposed that he was working from 13.08.1993 till 20.12.2001; that he worked under two contractors during the said period; that the contractors were M/s SRS Engineers and M/s Vijay Electrical; that he was not registered with Employment Exchange; that Sh. Kulwant Singh, Maintenance Manager got him employed; that he I.D No. 330/06 PAGE NO.40 OF 78 was deputed to work at 39 Pusa Building and 11/6B, Shanti Chamber, Pusa Road, New Delhi; that he used to be deputed for Electrical Maintenance at these buildings; that he was stopped from duties on 20.12.2001; that he was informed that the management had refused to take him on duty; that thereafter, he filed an industrial dispute against his services against Vijay Electrical also; that he was 10th class passed; that he has one daughter; that he was unemployed at present; that his services were terminated by the management on 20.12.2001.
Thereafter, WW1 to WW5 have been cross examined on behalf of the management no.2 in which the WW1 has deposed that he was ITI in Electricals; that he had little knowledge of English language; that it was correct that his duty hours were 8 everyday; that he did not have any proof of having worked beyond 8 hours with the management; that it was wrong to suggest that he never worked beyond 8 hours in a day; that it was wrong to suggest that he was not getting any weekly rest; that he knew the meaning of legal facilities; that by legal facilities he understood PF & ESI; that he had lodged a complaint with the labour department against the management for not providing the legal facilities to him. Again said that he did not lodge any complaint against the management; that it was wrong to suggest that he was getting all the legal facilities from the management; that in the year, 2002, his residential address was WZ, S Block, H.No. 4, Param Puri, Uttam Nagar, Delhi; that it was wrong to suggest that he I.D No. 330/06 PAGE NO.41 OF 78 worked less than 240 days with the management; that he had filed the proof of his having worked more than 240 days with the management; that it was correct that he had filed a case against the management before the Conciliation Officer at Curzon Road, New Delhi; that it was correct that he was not given any termination letter by the management; that it was wrong to suggest that he started absenting from duty w.e.f. 20.12.2001 without any information to the management and without getting any leave sanctioned from the management; that it was wrong to suggest that the management issued letters to him for joining the duty and he did not join the duty thereafter; that he did not remember the exact date when he lastly worked with the management; that however, it was December, 2001; that he did not remember the exact date when he lastly visited the management, however, it was in the month of February or March, 2002; that it was correct that he was offered duty by the management during the conciliation proceedings; that he went to join the duty but he was not allowed to go inside the premises; that he did not remember when he went to join the duty after the offer of the management before the Conciliation Officer; that it was wrong to suggest that he never visited the management for joining the duties after the offer of the management in the conciliation proceedings; that before the Conciliation Officer, he had prayed for providing ESI and regularization; that it was wrong to suggest that the management never I.D No. 330/06 PAGE NO.42 OF 78 terminated his services or never refused duties to him; that he was married and having one child; that he did not know his monthly expenses; that after his alleged termination he had searched for job and at one establishment he had joined but he was refused duties after 13 days on the ground that he had filed a case against some management; that he did not know the name of the firm where he had worked for 13 days; that he did not know whether there is sufficient work in the market for electrician; that it was wrong to suggest that he was employed and earning Rs. 7,000/ to Rs.8,000/ per month; that it was wrong to suggest that he had filed a false case against the management and had filed false affidavit; that it was wrong to suggest that he had abandoned his job w.e.f. 20.12.2001 by absenting himself from duty.
In his cross examination on behalf of the management no.2 WW2 has deposed that he had studied upto 10th class; that he understood English language; that it was wrong to suggest that his duty hours were eight hours per day; that Sunday was his weekly off; that by legal facilities, he understood the facilities of PF, ESI and leave wages; that he was working with M/s CDot (Centre for Development of Telematics); that it was correct that he did not lodge any complaint against management no.2 at any point of time and on any sore with the labour department during his working with the management no.2; that it was wrong to suggest that he was getting legal facilities from the management no.2; that it was wrong to suggest that he had worked less I.D No. 330/06 PAGE NO.43 OF 78 than 240 days with management no.2; that he had sought relief of regularization in the conciliation claim; that it was correct that he was not given any termination letter by management no.2; that it was correct that he was residing at 201N, Aram Bagh, Pahar Ganj, New Delhi; that it was wrong to suggest that he had started absenting from duty unauthorizedly w.e.f. 20.12.2001; that it was correct that he had received letters from the management to report on duty; Vol. He reported for duty but the management no.2 did not allow to join the duty; that he lastly worked with the management on 19.12.2001; that lastly he went to the management in December, 2001; that it was wrong to suggest that he was not offered by the management during the conciliation proceedings; that it was correct that all the six workers had jointly filed the case before the Conciliation Officer; that it was wrong to suggest that he was never refused duty by the management at any point of time; that he was married and had a child; that he did not know his monthly expenses; that he was staying in the same address at present at Pahar Ganj, which he had given to the management while working with the management with his friend; that some times, he got work of Rs. 50/ to Rs. 100/ per day, but he could not tell his average income per month. Again said that he was earning Rs. 1,000/ to Rs. 1,200/ per month; that it was wrong to suggest that he was earning Rs. 7,000/ to Rs. 8,000/ per month; that it was wrong to suggest that he had filed a false case or that he was deposing falsely; that it was I.D No. 330/06 PAGE NO.44 OF 78 wrong to suggest that he had abandoned the job of his own by way absenting from duty.
In his cross examination on behalf of the management no. 2, WW3 has deposed that he could not tell the year year when he joined the services of the respondent no.2; that it was wrong to suggest that he had worked with the respondent no.2 M/s Vijay Electrical less than 240 days; that it was correct that he was working at the site of respondent no.1; that he was not aware whether management nos.1 and 2 entered into an agreement for operation and maintenance of electrical installations at CDot, Delhi; that it was wrong to suggest that he was not the regular employee of the respondent no.2; that it was correct that he used to work eight hours a day; that it was also correct that he used to got a holiday/weekly off by the respondent no. 2; that Sunday used to be his weekly off; that he did not know the meaning of legal and statutory benefits; that it was correct that his Civil Writ Petition No. 5276 of 2002 was dismissed by the Hon'ble High Court of Delhi for regularization of his services with respondent no.1; that he did not know the meaning of minimum wages; that it was correct that he was never served with any termination letter by respondent no.2; that it was wrong to suggest that he started absenting from duties w.e.f. 20.12.2001 unauthorizedly; that it was correct that he received letter from respondent no.2 calling upon him to join the duties; Vol. He went to resume duties but he was not allowed to enter I.D No. 330/06 PAGE NO.45 OF 78 the premises; that it was correct that he was reporting for the duties at CDot; that he went to the duty site on 20th and 21st of October, 2001; that it was wrong to suggest that he did not report for the duties even after receiving the letters for the duties from respondent no.2; that it was correct that he filed a case of his termination before the Conciliation Officer, Curzon Road, New Delhi; that it was correct that the management had offered him the duty before the Conciliation Officer; Vol. He went to resume duty but he was not allowed; that it was correct that said fact has not been stated by him in his claim as well as in his affidavit; that it was wrong to suggest that he did not report for duty even after the offer of the management to report for duty during conciliation proceedings; that he could not tell the year and month when he lastly worked with the respondent no.2 but it was 19th; that he lastly went to the office of the respondent no.2 on 20 th of September/October 2001; that he was married and had three children; that he was an electrician; that he was paying rent of Rs. 700/ per month for the premises where he resided with his family; that his expenditure was Rs. 4,000/ or Rs. 5,000/ per month; that it was correct that he was working hard to earn Rs. 4,000/ or Rs. 5,000/ to sustain himself and his family members Again said that he was not earning anything; that it was wrong to suggest that his claim was false and he was deposing falsely.
In his cross examination on behalf of the management no.2, I.D No. 330/06 PAGE NO.46 OF 78 WW4 has deposed that he had studied upto 12th class; that he knew English Language; that he could read and write English language; that it was correct that he used to do eight hours duty with the management; that it was wrong to suggest that he used to get weekly off on Sunday during his service with the management no.2; that he did not lodge any complaint to the Labour Deptt. in this regard; that by legal facilities, he understood the facilities provided in CDot; that he did not know what facilities were being provided by CDot; that it was correct that in the years 2001 and 2002 his residential address was Village & Post Kheda Dabar, New Delhi110073; that it was correct that he started absenting from duty w.e.f. 20.09.2001; Vol. He had got injury in his leg that is why he stopped reporting for duty; that it was correct that he had not stated the fact of his injury in his claim statement as well as in his affidavit; that it was correct that he had received letters from the management to report for duty but he did not report for duty; Vol. He had talked to the management on telephone about his injury; that it was wrong to suggest that he did not inform the management about any injury; that it was correct that he was not given any termination letter by the management; that he could not tell the date, month and the year when he lastly worked with the management; that he had lastly visited the premises of the management on 18.12.2001; that it was correct that he had not written any letter to the management stating that he had visited the management on 18.12.2001 I.D No. 330/06 PAGE NO.47 OF 78 or he was refused to join his duty by the management; that it was wrong to suggest that he did not visit the premises of the management on 18.12.2001; that he did not file any case against the management in the conciliation at Curzon Road, New Delhi; that he did not have any proof of having worked over time with the management; that it was wrong to suggest that he had never worked overtime with the management; that he could not say whether he was getting all the legal facilities from the management or not; that it was wrong to suggest that he was not a regular employee of the management; that it was wrong to suggest that he had worked less than 240 days with the management; that he was married and had two children; that he did not know what were his monthly expenses; that his children were school going; that he was spending Rs. 60/ on the education of his children; that he tried for employment lastly in the year 2002; that it was wrong to suggest that he was gainfully employed and he was earning Rs. 5,000/ to Rs. 6,000/ per month; that it was wrong to suggest that his claim was false and he was deposing falsely.
In his cross examination on behalf of the management no. 2, WW5 has deposed that he had studied upto to 10th class; that it was correct that he was residing at 1/13540A Ram Nagar Tyagi Colony, Shahdara, Delhi in the year 2001; that he knew little English; that it was correct that he used to work for 8 hours with the management everyday; that by legal facilities, he understood the facilities of PF, I.D No. 330/06 PAGE NO.48 OF 78 Bonus etc.; that he did not know how many workers were working with the management; that it was wrong to suggest that the management did not employ the requisite number of employees warranting the facility of PF.; that it was correct that during the tenure of his service with the management, he did not lodge any complaint against the management on any score whatsoever against the management; that it was wrong to suggest that he was getting all the legal facilities from the management; that it was correct that the case which he had filed against the management, was dismissed by the Hon'ble High Court; that it was correct that no written termination letter was given to him by the management; that it was correct that M/s Vijay Electricals never refused him for duty at any point of time ; that it was correct that he started absenting from duty w.e.f. 22.12.2001; Vol. He reported for duty on 20.12.2001 but he was not allowed to work; that it was wrong to suggest that the management did not stop him from working on 20.12.2001; that it was correct that he had received letter from the management calling upon him for joining duty; that he went to report for duty on 20.12.2001; that he was deposing falsely in this regard; that he lastly worked on 19.12.2001; that he could not tell as to when he lastly visited the premises of the management for duty; that it was wrong to suggest that he did not report for duty after receiving the letter of the management calling upon him for joining duty; that he could not tell the dates when he I.D No. 330/06 PAGE NO.49 OF 78 appeared for work after receiving the letter but it was in the month of December, 2001 and January, 2002; that it was wrong to suggest that he was deposing falsely in this regard; that it was correct that he had filed a case against the management for reinstatement at Kasturba Gandhi Marg before the Conciliation Officer; that it was correct that he was offered duty by the management before the Conciliation Officer; Vol. He went to the management but he was not allowed to join duty; that he had mentioned this fact in his affidavit as well as in his statement of claim; that he went to the management lastly in January, 2002 after the offer was made by the management to join duty; that it was wrong to suggest that he was deposing falsely in this regard or that he never reported for duty in pursuance of the offer made by the management before the Conciliation Officer; that it was wrong to suggest that he was not the regular employee of the management; that it was wrong to suggest that he did not work for 240 days in a year with the management; that he was married and having one child; that his father in law was paying the rent of the house where he was residing; that he did not know his monthly expenses; that he went to Jain Electricals at Shahdara in search of employment, but they did not take him on duty because of his present labour case; that he went to Jain Electrical in 2002; that he also went to PWD for job in 2003; that it was correct that the job of electrician is highly available in the market; that it was correct that sometimes he I.D No. 330/06 PAGE NO.50 OF 78 got some work at homes and he did the said work of electrician; that he could not tell the average income per month from this work; that it was wrong to suggest that he was earning Rs. 5,500/ to Rs. 7,000/ per month; that it was wrong to suggest that he was not dependent on his father in law; that his father in law is in Government job but he did not know his salary; that he was having a ration card; that it was wrong to suggest that he had filed a false claim against the management or that he was deposing falsely.
Thereafter, the workmen evidence on behalf of the workmen has been closed, on record.
In the management evidence, the management no.1 has led the evidence of MW1 Ms. Bala Parmeshwari K. Manager (Administration) of the management no.1 viz. M/s CDot, who has tendered her affidavit by way of evidence Ex. MW1/A as also relied upon document Ex.MW1/1. In her affidavit by way of evidence Ex.MW1/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/management no.1 and was conversant with the facts of the case and authorized to swear her affidavit; 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; that therefore, there was no relationship of MasterServant between the parties; that vide Ex.D1, opposite party I.D No. 330/06 PAGE NO.51 OF 78 no.2 M/s Vijay Electricals was given a contract initially for a period of 2 years for operation and maintenance of electrical installations; 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 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 and without following the requirements set down therein; that in the case of the I.D No. 330/06 PAGE NO.52 OF 78 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.
Ex.MW1/1 being copy of an agreement dated 27.04.2000 entered into between the management nos.1 and 2 in respect of AMC for operation and maintenance of electrical installation at CDot, Delhi on the terms and conditions as mentioned therein for a period of two years w.e.f. 01.05.2000 to 30.04.2002 with the stipulation that the performance will be reviewed after one year, and if found satisfactory, the contract will be extended for 2nd year.
This witness has been cross examined at length on behalf of the workmen in which she has deposed that she was working in management no.1 since 1985; that the management no.1 is a registered society and engaged in the field of Telecommunication, Research and Development; that she had the authority to depose in this case, however, she had not brought the same on that day in the Court; that it was correct that she had not filed said authorization on record; that it was correct that for the research work, they need the assistance of electricians; that she had seen the workmen working in the premises but she could not say since when they were working with the management no.1; that it was wrong to suggest that the workmen were appointed by management no.1; that he could not admit or deny due to I.D No. 330/06 PAGE NO.53 OF 78 want of knowledge if a suggestion was put to her that these workmen were working for the last 1015 years. Vol. She was not in the administration branch of management no.1, and had no knowledge about the duration of service of the workmen; that the management no. 1 was having one branch in Delhi and one branch in Banglore; that even at the time when these workmen were there with the management no.1 only two branches were running; that around 6,7 or 8 electricians were working with management no.1 at the relevant time; that the qualification required for electricians was either having Diploma or Certificate from ITI; that the procedure for recruitment of staff mainly of the Telecommunication Wing of management no.1 was through Campus Recruitment as well as through open advertisement for regular staff; that on receiving the applications, the candidates are short listed based on selection procedure which includes tests, interviews, medical fitness etc.; that she did not know any person by name of Shalini Gupta. At this stage, the witness is shown some documents by the AR for the workmen, the witness after going through, the same submits that these documents are issued by the management no.1. The documents are exhibited as Ex.MW1/W1. Again said, I cannot vouch for the contents of these documents because these documents are only photocopies and not attested; that as per the procedure the officials of the rank of Engineers were placed on probation for around one year after their initial appointment and I.D No. 330/06 PAGE NO.54 OF 78 thereafter regularized; that they were governed by the byelaws of the Centre; that the workers of the present case were not appointed through advertisement. Vol. They were engaged through contractors and by the contractors; that the management no.1 was having licence to appoint a contractor; that the said licence was not filed on record; that she did not know whether the contractor to whom the contract was given by the management no.1 was having a licence or not; that the management no.1 was registered under Contract Labour Regulation and Abolition Act; that she could produce the copy of the licence of management no.1; that there was a provision in the byelaws to appoint a contractor; that she could produce the copy of the byelaws; that there was no provision with management no.1 whereby before appointing any contractor any resolution was required to be passed; that these workers were working under the contractor Vijay Electrical; that she cannot produce the advertisement inviting tenders from the contractors of the relevant time; that it was correct that Ex.MW1/1 is the copy of the letter awarding contract to Vijay Electrical along with terms and conditions between management no.1 and management no. 2; that it was correct that the document does not bear the signatures of any officials of management no.1 and management no. 2. Vol. But it bears the seal; that it was correct that even the terms and conditions attached with this letter do not bear the signatures of any officials of management no.1 and management no.2; that it was correct that I.D No. 330/06 PAGE NO.55 OF 78 document Ex.MW1/1 was not registered; that it was wrong to suggest that she had filed a false and fabricated agreement just to defeat the claims of the workmen; that the management no.1 was not having any licence to appoint a contractor and as such she cannot produce the same; that she had brought the copy of memorandum of association, rules and regulations, bye laws of the management no.1, copy of which was marked A; that she had brought the copy of bye laws certified by the Registrar CDot; that the copy of the bye laws filed by the management was only available with the management; that it was correct that there was no stamp of certification on these bye laws; that these bye laws have been certified by the Registrar CDot; that the bye laws were registered under the Societies Registration Act; that however, the said set of certified bye laws under Societies Registration Act was not available on that day with her; that she could produce the same later on if the same were found available; that she did not know if any resolution was made by the Director of the management with regard to the employment of contract labour. Vol. Board of directors have approved engagement of M/s Vijay Electricals the contractor for maintenance for electrical installations of various sites of CDot at that point of time; that she had not brought the said approval on that day with her nor the same was filed, on record. Again said the approval was Ex.WW1/1; that the resolution/decision passed to keep the contract labour was passed by Board of Directors. Vol. Based on the I.D No. 330/06 PAGE NO.56 OF 78 resolution of board of directors, there was procedure of calling the tender and the lowest tenderer to be awarded the contract; that the resolution was passed as per the quoram of board of directors; that she had not filed on record the copy of the said resolution; that the agreement of contract with M/s Vijay Electricals had not been registered; that it was wrong to suggest that the workmen were following the directions given by the management or their nature of the job was permanent; that the research work of the management related to electrical field, which was one site of the field besides the electrical engineers, it was mainly software and hardware engineers and computer engineers; that the generator operators were hired through contractors; QWhat was the meaning of technical staff mentioned in their bye laws?; ATechnical staff were engineers and qualified technical assistants that they were diploma engineers; that it was correct that handling of all electrical operations and operating of generators were maintained by the workmen; that the contractor was also not having any licence and as such they had not taken any copy of the licence from the contractors; that it was wrong to suggest that the workmen had demanded for their regular appointment and for this reason they were terminated by the management; that it was correct that they had not issued any termination letter to the workmen. Vol. Since they were not appointed by CDot; that it was wrong to suggest that they were employees of CDot and not of the contractor. I.D No. 330/06 PAGE NO.57 OF 78
Ex.MW1/W1 being copy of appointment order dated February, 10, 2003 of the management no.1 in respect of Ms Shalini Gupta appointed as Research Engineer with the management no.1 in the pay scale, duration and basic pay as mentioned therein alongwith the terms and conditions.
Thereafter, management evidence on behalf of the management no.1 has been closed, on record.
The management no.2 has led the evidence of MW2 Sh.
Jagdish Chand, Ahlmad from Labour Department, 5, Sham Nath Marg, New Delhi in its management evidence, on record, who has deposed that he had brought the summoned record of file No. F24(1947)/02/Lab.; that the copy of reply filed by the management M/s Vijay Electrical, before the Conciliation Officer was Ex.MW2/1 which was compared by him from the originals produced by him on that day in the Court as also led the evidence of Sh. Vijay Singh, Sole proprietor of the management no.2 as MW3 in its management evidence, on record, who has tendered his affidavit by way of evidence Ex.MW3/A in the same as also relied upon the documents Exts. MW3/1 to MW3/19 (Exhibition of documents was objected to by the AR for the workmen on the ground of being photocopies). In his affidavit by way of evidence he has reiterated the contents of the written statement of the management no.2 to the effect that he was the proprietor of M/s Vijay Electricals; that he was aware of the facts of I.D No. 330/06 PAGE NO.58 OF 78 the case and competent to depose to the affidavit; that the claimants namely S/Sh. Pradeep Chaudhary, Satish Kumar, Ram Kumar, Sushil Kumar and Thomas Daniel worked with the management and were engaged by the management on casual basis; that they were not regular workers of the management; that these workmen worked less than 240 days with the management; that the management had been granting all the legal benefits to the applicants what they were entitled to get under Delhi Shops and Establishment Act; that the applicants used to work 8 hours a day in the management; that the applicants had never worked over time with the management; that the management never got work from the claimants on holidays and on Sunday; that the claimants used to be given a weekly off; that the management/deponent had never terminated the services of the claimants at any point of time and nor the management ever refused duty to the claimants at any point of time; that the applicant Sh. Pradeep Chaudhary started absenting from the duty w.e.f. 22.12.2001 unauthorizedly; that Sh. Satish Kumar started absenting from the duty w.e.f. 20.09.2001 unauthorizedly and Sh. Ram Kumar, Sushil Kumar and Daniel Thomas started absenting from duties w.e.f. 20.12.2001 unauthorizedly; that these applicants started absenting from duty without any intimation to the management and without getting leave sanctioned; that these applicants were written letters and sent telegram to report for duty but the applicants never came to report for duty and I.D No. 330/06 PAGE NO.59 OF 78 thus abandoned the job by refusing to join the duty; that the claimants were offered duty by the management before the Labour Inspector as well as before the Conciliation Officer, the office of the Assistant Labour Commissioner, K.G. Marg, New Delhi but the claimants did not join the duty; that the claimants were not entitled to any relief much less the relief of reinstatement with the continuity of service and back wages.
Exts.MW3/1 to MW3/10 are the copies of letters dated 02.01.2002 of the management no.1 to the workmen S/Sh. Thomas Daniel, Sushil Kumar, Satish Kumar, Pradeep Chaudhary and Ram Kumar in respect of the workmen S/Sh. Thomas Daniel, Sushil Kumar and Ram Kumar being absent from their duties with the management no.2 w.e.f. 20.12.2001, the workman Sh. Satish Kumar being absent from his duty with the management no.2 w.e.f.20.09.2001 and the workman Sh. Pradeep Chaudhary being absent from his duty with the management no.2 w.e.f. 22.12.2001, all without any information to the management no.2 or sanction of leave in this regard from the management no.2 and to report for their duties with the management no.2 within 24 hours of the receipt of the said letters with the explanation as to why they were absent from their duties with the management no.2 since the dates as given in their respect, as abovesaid, Ex.MW3/11 being copy of the telegram of the management no.2 to the workmen in respect of the direction to them by the I.D No. 330/06 PAGE NO.60 OF 78 management no.2 to report for their duties with the management no.2 on 11.01.2002 at 09.30 A.M. along with Exts.MW3/12 to MW3/15 being the copies of receipts of Department of Telecommunications dated 09.01.2002 in respect of the said telegram Ex.MW3/11 qua the workmen S/Sh. Ram Kumar, Pradeep Chaudhary, Sushil Kumar and Thomas Daniel respectively, Exts.MW3/16 to MW3/19 being copies of acknowledgment due cards of the workmen S/Sh. Ram Kumar, Pradeep Chaudhary, Sushil Kumar and Thomas Daniel in respect of the letters sent vide registered A.D. post dated 02.01.2002 of the management no.2 to the said workmen Exts.MW3/1, MW3/4, MW3/8 and Ex.MW3/10, Ex.MW2/1 being copy of the reply filed by the management no.2 before the Conciliation Officer, Curzon Road, Kasturba Gandhi Marg, New Delhi.
The MW3 has been cross examined on behalf of the workmen, in which he has deposed that he had brought the originals of Exts.MW3/1 to MW3/10 and Exts.MW3/12 to MW3/19 to the Court on that day, which had been seen by the AR for the workmen; that Ex.MW3/11 being the photocopy of telegram form, original of which was sent to the workmen; that it was correct that out of five workers, three workmen S/Sh. Shiv Kumar, Ram Kumar and Thomas Daniel were earlier employed with respondent no.1, as Electricians; that the workmen S/Sh. Satish Kumar and Pradeep Chaudhary were not the regular employees of respondent no.1; that it was wrong to I.D No. 330/06 PAGE NO.61 OF 78 suggest that these two workmen were regular employees of management no.1; that he used to maintain regular case dairy; that he used to maintain attendance register; that he had not brought the same on that day to the Court; that it was wrong to suggest that he did not use to maintain any attendance register; that it was correct that he had stated in his affidavit that he used to provide all the statutory benefits to the workmen; that ESI was not applicable on his establishment; that it was wrong to suggest that he was not granting legal benefits to the claimants; that it was correct that he had entered into an agreement with respondent no.1 which was marked as Ex.WW1/1; that the said agreement was executed between the parties in the year 2000; that his signatures on Ex.WW1/1 appear at points X; that it was correct that the agreement Ex.WW1/1 was not registered; that it was wrong to suggest that no agreement was reached between respondent no.1 and respondent no.2. Vol. Ex.WW1/1 was filed and relied upon by the workmen which shows that there was an agreement between the respondent nos.1 and 2; that he did not have the licence to engage contract labourers; that it was correct that there was no electrician with respondent no.1 except these five workers; that he had sent letters to the workers to report for duty on their running absent from duty without intimation to him and without getting any sanctioned leave from him; that he did not know whether these workmen reported for duty to management no.1; that as far as he recollect that on his visit to I.D No. 330/06 PAGE NO.62 OF 78 management no.1, he did not find these workmen on duty after he sent letters to the workers to join the duty; that he reached the respondent no.1 working place at 8.30 A.M. on 06.01.2002, but he did not find the workmen there; that he was sitting inside the office of management no.1 and waiting for the workmen to reach and start work but the workmen did not come to the working place of the management no.1; that it was wrong to suggest that the workmen used to work extra at the instance of respondent no.1 on holidays; that it was wrong to suggest that the research work of the respondent no.1 could not be carried out without electricians (these workmen); that the workmen used to work 8 hours a day; that it was wrong to suggest that Sh. Pradeep Chaudhray was not allowed entry on 20.12.2001 by the management no.1. Vol. The workmen did not report for duty on the said date; that it was wrong to suggest that he had terminated the services of the workmen illegally; that it was correct that the workmen had preferred their claim earlier before the Conciliation Officer; that it was wrong to suggest that he had terminated the services of the workmen during the pendency of conciliation proceedings; that it was correct that the agreement with the respondent no.1, which was Ex.WW1/1 was for a period of two years from 01.05.2000 to 30.04.2002; that it was wrong to suggest that he did not send telegram marked as Ex.MW3/11 to the workmen; that in support of his dispatching the said telegram he had filed Ex.MW3/12 to Ex.MW3/15; I.D No. 330/06 PAGE NO.63 OF 78 that it was wrong to suggest that the workmen were employed with management no.1 for a long time and were working under the control and supervision of management no.1; that the signatures on Ex.WW1/1 and the signatures on Ex.MW3/2 to Ex.MW3/9 were different. Vol. The signature on Ex.WW1/1 were his and signatures on Ex.MW3/2 to Ex.MW3/9 were of his Manager Sh. Vikram Singh; that the respondent no.2 was a proprietorship concern; that it was wrong to suggest that he was deposing falsely.
Thereafter, evidence on behalf of the management no.2 has been closed, on record.
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 pronouncement in III (2001) SLT 561: (2001) I.D No. 330/06 PAGE NO.64 OF 78 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 incidental and ancillary records which would I.D No. 330/06 PAGE NO.65 OF 78 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 specifically under the provisions of Section 11 (3) (b) of the Industrial I.D No. 330/06 PAGE NO.66 OF 78 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 filed and relied upon by the workmen Exts.WW1/1 to WW1/10 as also Exts.WW2/1 to WW2/3, as abovesaid, in workmen evidence, on 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 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. That even with regard to the second test the workmen have not established that they were working under the direct control and supervision of the I.D No. 330/06 PAGE NO.67 OF 78 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 worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with I.D No. 330/06 PAGE NO.68 OF 78 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.MW1/1 (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) as also from the cross examination of the MW1 Ms. Bala Parmeshwari K., Manager (Administration) of the management no.1 on behalf of the workmen in the management evidence of the management no. 1 M/s CDot, on record, to the effect that it was wrong to suggest that the workmen were the employees of the management no.1 M/s CDot and not of the Contractor.
It is seen from the record that though the workmen have I.D No. 330/06 PAGE NO.69 OF 78 alleged that their services were terminated by the managements on 20.12.2001 without notice illegally and in violation of the provisions of law, however, no material/evidence has been led on the part of the workmen in this regard, on record, and on the contrary, the management no.2 has proved the letters and their postal registration receipts Exts.MW3/1 to MW3/10 in respect of the workmen to the effect that they were not reporting for their duties with the management no.2 i.e. in respect of workmen S/Sh. Sushil Kumar, Thomas Daniel and Ram Kumar WW1 to WW3 that they were not reporting for their duties with the management no. 2 w.e.f 20.12.2001, in respect of workman Sh. Satish Kumar WW4 that he was not reporting for his duty with the management no. 2 w.e.f. 20.09.2001 and in respect of workman Sh. Pradeep Chaudhary WW5 that he was not reporting for his duty with the management no. 2 w.e.f. 22.12.2001, without any information or sanctioning of any leave on their part from the management no.2 in this regard and were directed vide the subject letters to report for their duties with the management no.2 within 24 hours of the receipt of the said letters alongwith their explanations for their absence from their duties with the management no.2 with effect from the dates alleged as also copy of telegram dated 09.01.2002 to the workmen, Ex.MW3/11 along with copies of its receipts of the said date in respect of the workmen, Exts.MW3/12 to MW3/15 to the effect that the workmen were directed to report for I.D No. 330/06 PAGE NO.70 OF 78 duty with the management no.2 on 11.01.2002 at 09.30 A.M. at the place mentioned therein along with copies of the A.D. cards of the workmen in respect of letters and postal registration receipts Exts.MW3/1 to MW3/10 of the management no.2 to the workmen, Exts. MW3/16 to MW3/19 as also Ex.MW2/1 which is copy of the reply filed on behalf of the management no.2 to the statement of claim of the workmen before the Conciliation Officer, Curzon Road, Kasturba Gandhi Marg, New Delhi in support of its abovesaid submissions against the workmen to which it is seen from the record that though it has been alleged by the workmen that they had reported for duty consequent to the receipt of the letters dated 02.01.2002 of the management no.2, however, no such evidence has been led on behalf of the workmen, on record and on the contrary it has been admitted by the workmen in their cross examination on behalf of the management no.2 in workmen evidence viz. by the WW1 Sh.Sushil Kumar when he states that.........it was correct that he was not given any termination letter by the management;........; that he did not remember the exact date when he lastly worked with the management, however, it was December, 2001; that he did not remember the exact date when he lastly visited the managements, however, it was in the month of February or March, 2002; that it was correct that he was offered duty by the management during the conciliation proceedings; that he went to join the duty but he was not allowed to go inside the premises; that I.D No. 330/06 PAGE NO.71 OF 78 he did not remember when he went to join the duty after the offer of the management before the Conciliation Officer; ....... by the WW2 when he states in his cross examination on behalf of the management no.2 in workmen evidence that it was correct that he was not given any termination letter by the management no.2;.......; that it was correct that he had received letter from the management to report for duty; that he had lastly worked with the management on 19.12.2001; that lastly he had gone to the management in December, 2001; ...... by the WW3 in his cross examination on behalf of the management no. 2 in workmen evidence to the effect that it was correct that his Civil Writ Petition No. 5276 of 2002 was dismissed by the Hon'ble High Court of Delhi for regularization of his services with respondent no.1; that it was correct that he was never served with any termination letter by respondent no.2;.........; that it was correct that he had received letter from respondent no.2 calling upon him to join the duties; that he had gone to the duty site on 20th and 21st of October, 2001;.....; that it was correct that the management had offered him the duty before the Conciliation Officer;........; that he cannot tell the year and month when he lastly worked with the respondent no.2 but it was 19th; that he had lastly gone to the office of the respondent no.2 on 20th of September/October 2001; ......... by the WW4 Sh. Satish Kumar when he states in his cross examination on behalf of the management no.2 in workmen evidence that it was correct that he had started absenting I.D No. 330/06 PAGE NO.72 OF 78 from duty w.e.f. 20.09.2001; that it was correct that he had not stated the fact of his injury in his claim statement as well as in his affidavit; that it was correct that he received letters from the management to report for duty but he did not report for duty; that it was correct that he was not given any termination letter by the management; that he cannot tell the date, month and the year when he lastly worked with the management; that he lastly visited the premises of the management on 18.12.2001; that it was correct that he had not written any letter to the management stating that he visited the management on 18.12.2001 or he was refused to join his duty by the management; that he did not file any case against the management in the conciliation at Curzon Road, New Delhi; ........ and by the WW5 in his cross examination on behalf of the management no.2 in workmen evidence when he states that it was correct that no written termination letter was given to him by the management; that it was correct that the management no.2 M/s Vijay Electrical never refused him for duty at any point of time ; that it was correct that he started absenting from duty w.e.f. 22.12.2001;.......; that it was correct that he received letter from the management calling upon him for joining duty; that he had gone to report for duty on 20.12.2001; that he had lastly worked on 19.12.2001; that he cannot tell as to when he lastly visited the premises of the management for duty; ...........; that it was correct that he was offered duty by the management before the Conciliation I.D No. 330/06 PAGE NO.73 OF 78 Officer; .........
It is thus seen from the record that the workmen WW1 to WW5 have admitted to having received the letters from the management no.2 to report for duty consequent to 20.12.2001 when they are alleged to have abandoned the services of the management no. 2 on its part, however, though they have alleged that they had gone to report for duty with the management no.2 pursuant to receipt of the said letters Exts.MW3/1 to MW3/10 ( along with their postal registration receipts), telegram and its receipts Exts. MW3/11 to MW3/15 and A.D Cards Exts.MW3/16 to MW3/19, however, no evidence in this regard has been led by the workmen against the management no.2, on record and nor any reply/representation on their part/behalf to the management no.2 in this regard in support of their submissions/allegations, as abovesaid, have been proved on their part in their workmen evidence against the management no.2, on record, so much so that it is seen from the record that even copy of the legal notice dated 26.12.2001 allegedly got sent by the workmen through their Counsel Sh. Sundeshwar Lal in respect of their allegations against the managements forming subject matter of their statement of claim and evidence by way of their affidavits by way of evidence, Exts. WW1/A to WW5/A in workmen evidence has not been proved on their part in their workmen evidence in support of their said allegations against the managements, on record, except for the bald I.D No. 330/06 PAGE NO.74 OF 78 allegation that they had reported for duty at the premises of the management no.1 on 06.01.2002 pursuant to the said letters of the management no.2 and were not allowed to enter the premises of the management no.1 without leading evidence in support/substantiation of the said allegation by way of testimony of any witness or proving of any documentary evidence to the said effect in their workmen evidence, on record, again Ex.WW1/6, I find being photocopy of alleged letter written by one alleged Sh. Tara Chand Security Guard at the premises of the management no.1 in respect of an alleged altercation with some unidentified persons on 06.01.2002 at 03.15 P.M. and Ex.WW1/7 being photocopy of an alleged letter of the workmen to SHO, Police Station Karol Bagh, New Delhi in this regard without proof of any receipt of the said addressee on the same, which I find do not go towards proving of the said allegation on the part of the workmen against the management no. 2 by virtue of the same having not been proved in accordance with law in workmen evidence, on record, in support of their allegation, as abovesaid, on record, by leading of any primary evidence in the shape of testimony of the author (Ex.WW1/6) or of any independent witness in corroboration of the alleged contents of the said alleged letters Exts.WW1/6 and WW1/7 or even leading of any documentary evidence in respect of the same on the part of the workmen in their workmen evidence, on record.
I.D No. 330/06 PAGE NO.75 OF 78
It is further seen from the record that it has nowhere been the case of the workmen that they went to rejoin the duties with the management no.2, their case being that they were entitled to be absorbed in the services of the management no.1 by virtue of being employed therein through various contractors including the management no.2 over a period of time as alleged and accordingly it is seen from the record that the workmen have not been able to prove, on record that their services have been terminated on the part of the management no. 2 on 20.12.2001 as alleged and on the contrary the management no.2 has been able to prove by way of its cross examination of the workmen WW1 to WW5 in workmen evidence as also the testimony of MW3 Sh. Vijay Singh, Sole proprietor of the management no.2 in management evidence along with the management no.2 Exts. MW3/1 to MW3/19, as abovesaid, on record, that the workmen had absented from their duties with the management no. 2 with effect from the dates alleged without any prior intimation and sanctioning of any leave of absence in their favour on the part of the management no. 2 in this regard and thereby had abandoned their services/employment with the management no. 2 with effect from the same.
It is further seen from the record that the workmen have not led any evidence, on record, to the effect that twenty or more workmen were employed or ever employed on any day of the preceding twelve I.D No. 330/06 PAGE NO.76 OF 78 months as contract labour in the establishment of the management no.1 or that management no.2 Contractor employed or had employed on any day of the preceding twelve months twenty or more workmen which is a condition precedent for applicability of the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 to the establishment of the principal employer viz. the management no.1 in the instant case and Contractor viz. the management no.2 in the instant case vide sub section (4) of Section 1 of the said Act in order for the engagement of the workmen with the principal employer viz. the management no.1 in the instant case through the Contractor viz. the management no.2 in the instant case, to be in violation of the provisions of the same in any manner whatsoever.
In view of my abovesaid observations and findings, I find that the workmen have not been able to discharge the onus which was upon them in respect of the alleged termination of their services on the part of the management no. 2 on the date alleged viz. 20.12.2001 in the instant case and on the contrary the management no.2 has been able to prove vide its evidence, as abovesaid, on record, that the workmen have abandoned their services with it i.e. qua the workmen S/Sh. Sushil Kumar, Thomas Daniel and Ram Kumar (WW1 to WW3) w.e.f. 20.12.2001 the date alleged in their respect in this regard, as abovesaid, qua the workman Sh. Satish Kumar (WW4) w.e.f. 20.09.2001, the date alleged in his respect in this regard, as above said, I.D No. 330/06 PAGE NO.77 OF 78 and qua the workman Sh. Pradeep Chaudhary (WW5) w.e.f. 22.12.2001 the date alleged in his respect in this regard, as above said, and accordingly, in view of my above findings, the instant issue is decided against the workmen and in favour of the management no.2. Issue no.3.
In view of my findings, on the issue nos.1 and 2, as abovesaid, the workmen, as above said, are held to be not entitled to any relief. In view of the workman Sh. Shri Pal having not appeared nor filed his statement of claim against the managements in the instant reference, on record, it is apparent that he was not interested in pursuing his case. That as the said workman has not pursued his case, it seems that there is no dispute between the said workman and the managements.
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.
I.D No. 330/06 PAGE NO.78 OF 78