Delhi District Court
Shri Gaya Prasad Singh vs ) Shri Kunal Sehgal on 26 July, 2023
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER : LABOUR COURT - 08
ROUSE AVENUE DISTRICT COURTS : NEW DELHI
LID No.452/2019
CNR No. DLCT13-003060-2019
In the matter of:
Shri Gaya Prasad Singh
S/o Late Shri Ram Bahadur
R/o 297, Karo Raghvpur,
District Faizabad, Uttar Pradesh
Through:
Shri Mohan Chand Joshi (General Secretary)
Rashtriya General Kamgar Mazdoor Union (Regn. No.3261),
Seat No.11A, Near Treasury Gate,
Tis Hazari Court, Delhi - 110054
... Workman
Versus
1) M/s S.D. Nanda & Sons
50, Shradha Nand Marg, G.B. Road,
Delhi - 110006
2) M/s K-Tech Automation
50, Shradha Nand Marg, G.B. Road,
Delhi - 110006
Proprietor/Partner
1) Shri Kunal Sehgal
S/o Shri Pradeep Sehgal
2) Smt. Neelu Sehgal
W/o Shri Pradeep Sehgal
R/o E-14, Grater Kailash-I,
New Delhi - 110048
Page 1 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019
3) Smt. Meenu Malhotra
W/o Shri Atul Malhotra
R/o D-70, Defence Colony
New Delhi - 110024
4) Smt. Seema Mehra
W/o Shri Sunil Mehra
R/o 67/10, New Rohtak Road
New Delhi - 110005
...Management
Date of Institution : 18.07.2019
Date of Award : 26.07.2023
AWAR D
1. Shri Gaya Prasad Singh has filed statement of claim
asserting continuous employment with management in the post
of 'Peon' since 1987. It is submitted that earned wages of
November and December 2017 were not paid to the workman by
LRs of Late Shri B.M. Nanda - namely Shri Kunal Sehgal, Smt.
Neelu Sehgal, Smt. Meenu Malhotra and Smt. Seema Mehra on
the pretext of dispute between the siblings and he was wrongly
removed from service on 01.11.2018 without paying earned
wages from 01.11.2017 till 31.12.2017.
2. Demand letter dated 11.05.2018 seeking reinstatement
with back wages was neither replied nor complied whereas
settlement could not be effected before Conciliation Officer,
Central District, Pusa Campus Delhi. Shri Gaya Prasad Singh has
thereafter filed statement of claim under Section 2A of the
Page 2 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019
Industrial Disputes Act (hereinafter referred as 'I.D. Act') on the
basis of 'Failure Report' advising him to file claim before the
Labour Court.
3. It is submitted that services of Shri Gaya Prasad Singh
have been terminated in violation of Section 25F of I.D. Act
without any notice, service compensation and one month salary
in lieu of notice and workman being unemployed since the date
of illegal termination of service is entitled to be reinstated with
continuity of service and all attendant benefits including back
wages.
4. Ms. Neelu Sehgal has filed separate written statements,
one as LR of Late Brij Mohan Nanda, Proprietor M/s S.D. Nanda
& Sons and the other as Proprietor M/s K-Tech Automation
seeking dismissal of claim inter alia on following grounds:
i. M/s S.D. Nanda & Sons and M/s K-Tech Automation
are separate legal entities and have not privity of trade
or any other relationship with each other.
ii. M/s S.D. Nanda & Sons was proprietorship concern of
Late Brij Mohan Nanda having TIN No. 07020005020
and no commercial activity is being carried by any of
the LRs of Late B.M. Nanda after his death on
07.12.2016 which is verified by letter dated 27.02.2018
sent to Value Added Tax Officer (VATO) through speed
post and was duly delivered to the VAT Department,
New Delhi on 01.03.2018.
Page 3 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019
iii. M/s S.D. Nanda & Sons has closed down its business in
December, 2016 after the death of Shri Brij Mohan
Nanda and no activity whatsoever is being carried by
any of his successor/daughter/legal heirs after the death
of Shri Brij Mohan Nanda.
iv. Services of Shri Gaya Prasad Singh were not terminated
by management rather it came to an end due to closure
of business of management No.1.
v. Shri B.M. Nanda having left for his heavenly abode on
07.12.2016 is survived by three daughters namely Smt.
Neelu Sehgal, Smt. Meenu Malhotra and Smt. Seema
Mehra and none of his LRs has carried on the business
under name and style of S.D. Nanda & Sons.
vi. Statement of claim based on false, frivolous, vexatious
and concocted allegations is liable to be dismissed with
exemplary cost.
vii. Ms. Neelu Sehgal being proprietor of M/s K-Tech
Automation having D-VAT and Central Sales Tax
(CST) Registration No.07380333749; Importer-
Exporter Code (IEC) No.0507061179 & Provisional
GST ID No.07AAYPS9488G1ZH is operating from
mezzanine floor of 50, Shradha Nand Marg, GB Road,
Delhi-110006 since 15.09.2007 and her son Shri Kunal
Sehgal is looking after the day-to-day affairs of M/s K-
Tech Automation employing two persons whose
Page 4 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019
monthly wages are being paid vide vouchers.
viii. No material or documentary evidence has been
adduced or filed by the workman to prima facie show
existence of any employer-employee relation with
management No.2 M/s K-Tech Automation.
ix. Workman claiming employment since 1974 in all
probability is telling blatant lies as M/s K-Tech
Automation came into existence in the year 2007.
5. Ms. Meenu Malhotra and Ms. Seema Mehra impleaded as
respondents No.3 & 4 have filed separate reply seeking dismissal
of claim on the ground of mis-joinder of parties by contending that they were never part of management No.1 & 2 and have no knowledge of allegations leveled in the statement of claim.
6. Following issues were settled on 30.03.2022 on the basis of pleadings:
i. Whether services of workman Shri Gaya Prasad Singh S/o Shri Ram Bahadur have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect? ...OPW ii. Whether claim is liable to be dismissed in the absence of employer-employee relationship between claimant and management No.1 and 2? ...OPM 1&2 iii. Relief.
7. Shri Gaya Prasad Singh having reiterated his averments in Page 5 of 12 Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019affidavit Ex.WW1/A has relied upon following documents in his examination-in-chief recorded on 06.08.2022:
i. Photocopy of demand notice dated 11.05.2018 addressed to management - Ex.WW-1/1(OSR). ii. Photocopy of postal receipts - Ex.WW-1/2 to Ex.WW1/5(OSR).
8. Workman's evidence has been closed after recording his cross-examination on 01.12.2022.
9. Shri Kunal Sehgal, Authorized Representative of Ms. Neelu Sehgal examined as MW1 has tendered affidavit Ex.MW1/A disputing termination of service of Shri Gaya Prasad Singh on 01.11.2018 by relying upon following documents in his examination-in-chief recorded on 09.01.2023:
i. Award/judgment dated 28.07.2018 passed by Shri Umed Singh Grewal, Ld. POLC-XVII, Dwarka Courts in LIR No.372/18 - Ex.MW-1&2/1.
ii. Examination and cross-examination of M1W1 Shri Ram Naresh Sharma, Record Keeper, Ward-26, Trade & Taxes Department, Vyapar Bhawan, I.P. Estate, New Delhi recorded in LIR No.372/18 on 04.07.2018 - Ex.MW-1&2/2.
iii. Letter dated 27.02.2018 sent to Department of Trade & Tax by Ms. Neelu Sahgal informing death of Shri Brij Mohan Nanda - Ex.MW-1&2/3.
iv. Dealer's profile of M/s S.D. Nanda for the year 2016-17
- Ex.MW-1&2/4.
v. DP1 Details of M/s S.D. Nanda & Sons - Ex.MW-Page 6 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.LID No.452/2019
1&2/5.
vi. Examination and cross-examination of Shri Kunal Sahgal recorded on 13.07.2018 in LIR No.372/18 - Ex.MW-1&2/6.
vii. Death certificate of Shri Brij Mohan Nanda - Ex.MW- 1&2/7.
viii. Attendance Register of M/s S.D. Nanda & sons - Ex.MW-1&2/8 - (41 pages).
ix. Examination and cross-examination of Shri Jagdish Narain recorded on 04.07.2018 in LIR No. 372/18 - Ex.MW-1&2/9.
x. Edit report of IEC No. 0507061179 of K. Tech Automation - Ex.MW-1&2/10.
xi. Copy of Certificate of Importer-Exporter Code (IEC) of K-Tech Automation - Mark 'A'.
xii. Examination and cross-examination of Shri Ram Naresh Sharma recorded on 04.07.2018 in LIR No. 372/18 - Ex.MW-1&2/12.
xiii. Dealer's profile of K-Tech Automation - Ex.MW- 1&2/13.
xiv. Dealer's profile details of K-Tech Automation - Ex.MW-1&2/14.
xv. Copy of Form DVAT-06 of K-Tech Automation - Mark 'B'.
xvi. Copy of Certificate of Registration under CST Act of K-Tech Automation - Mark 'C'.
10. Cross-examination of MW-1 has been recorded and Page 7 of 12 Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/2019management evidence was closed on 09.01.2023.
11. Shri Mohan Chand Joshi for workman; Shri Anil Kumar Gupta for Ms. Neelu Sehgal AND Shri Ajit Kumar Gola for Ms. Meenu Malhotra & Ms. Seema Mehra have filed their written submissions.
12. I have carefully perused pleadings, evidence and written submissions filed on judicial record.
13. Shri Gaya Prasad Singh having approached the Court alleging termination of service on 01.11.2018 has fairly conceded that his services were not terminated during cross-examination recorded on 01.12.2022. Relevant extract of cross-examination of WW1 Shri Gaya Prasad Singh is reproduced in verbatim:
"It is correct that my services were not terminated and Proprietorship concern M/s S.D. Nanda & Sons was closed after the death of Proprietor Shri B.M. Nanda."
14. Shri Gaya Prasad Singh has also deposed to have not visited M/s S.D. Nanda & Sons after the death of Shri B.M. Nanda and having not worked with M/s K-Tech Automation during cross-examination by Shri Anil Kumar Gupta. Following portion of cross-examination of WW1 Shri Gaya Prasad Singh being relevant is extracted below:
"...It is correct that Late B.M. Nanda has expired on 07.12.2016. I have never visited M/s S.D. Nanda & Sons after the death of Shri B.M. Nanda. I had sent notice dated 11.05.2018 to S.D. Nanda & Sons. I had not sent any notice prior to notice dated Page 8 of 12 Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.LID No.452/2019
11.05.2018. It is correct that M/s S.D. Nanda & Sons was carrying its business from ground floor and godown was at first floor. I have not worked with M/s K-Tech Automation."
15. Employer-employee relation between Shri Gaya Prasad Singh and management No.2 M/s K-Tech Automation could not be established in view of aforesaid admission by Shri Gaya Prasad Singh during cross-examination recorded on 01.12.2022.
16. Shri Gaya Prasad Singh having approached the Court alleging termination of service on 01.11.2018 has also failed to continuous service with employer for 240 days in view of categorical admission of having not visited management No.1 after the death of Shri B.M. Nanda on 07.12.2016.
17. It is well settled law that onus and burden to establish continuous employment for 240 days in the year preceding termination of service is upon the workman and mere affidavit tendered in evidence is not sufficient to prove 240 days of continuous service as held by Hon'ble Supreme Court of India in Range Forest Officer Vs. S.P. Hadimani (2002) 3 SCC 25.
"In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the Page 9 of 12 Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.LID No.452/2019
claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside....."
18. Aforesaid principle of law has been reiterated by Hon'ble Apex Court in later judgments titled Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 SCC 195; Surendernagar District Panchayat Vs. Dahiyabhai Amarsinh (2005) 8 SCC 750; Manager, Reserve Bank of India Bangalore Vs. S.Mani & Ors. (2005) 5 SCC 100; R.M. Yellatti Vs. Assistant Executive Engineer (2006) SCC 106 AND Mohd. Ali Vs. State of Himachal Pradesh & Ors. (2018) 15 SCC 641.
19. Para 6 of judgment of Hon'ble Supreme Court of India in "Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another" (2004) 8 SCC 161 being relevant is extracted herein below:
"It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead Page 10 of 12 Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.LID No.452/2019
evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed."
20. Similar observation regarding burden of proof recorded in para 17 of judgment of Hon'ble Supreme Court of India in "Surendernagar District Panchayat Vs. Dahyabhai Amarsinh"
(Supra) is reproduced below for reference:
"More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan, Municipal Corporation, Faridabad vs. Siri Niwas and M.P. Electricity Board vs. Hariram this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer."Page 11 of 12
Shri Gaya Prasad Singh Vs. M/s S.D. Nanda & Sons AND Ors.
LID No.452/201921. Workman Shri Gaya Prasad Singh having failed to establish 240 days of continuous service before he was allegedly removed from service on 01.11.2018 is not entitled to benefits provided under Section 25F of I.D. Act.
22. Issue No.1 & 2 are therefore decided against Shri Gaya Prasad Singh in the absence of evidence to establish 240 days of continuous service with management before alleged termination of service on 01.11.2018.
RELIEF
23. Statement of claim under Section 2A of I.D. Act, 1947 seeking reinstatement with back wages is therefore dismissed.
24. Copy of Award be sent to Joint Labour Commissioner, North District, Nimri Colony, Ashok Vihar, Phase-IV, Delhi for publication.
25. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT DATED: 26.07.2023 Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2023.07.28 15:14:21 +0530 (TARUN YOGESH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS:
NEW DELHI Page 12 of 12