Delhi District Court
Satbir & Ors. vs . M/S. Ambassador Sky Chef & Ors. Did No. ... on 15 December, 2016
Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) No. 123/16
UNIQUE CASE ID No. 02402C0611052006
In the matter of:
Sl. No. Name & Father's Name Address
01. Satbir S/o. Suby Singh Nilwal, P.O. Tikri Kalan, Delhi41
02. Sukhbir Singh S/o. Amrit Singh Village Hellymandi Distt. Gurgaon,
Haryana
03. Sanjay Unjiwal, s/o. Sh. Ram Kishan Vill Nangal Dawat, Delhi.
04. Vikram Singh S/o Sh. Satpal Singh 321A, VPO Dhansa, Near Mata Nand Kaur
School, Dhansa, Delhi73
05. Narinder Singh S/o Sh. Nahar Singh Village Naseerpur, New Delhi45
06. Sandeep Singh S/o Sh. Nahar Singh VPO, Aravali, Sonepat, Haryana
07. Suresh KumarII S/o Sh. Mal Phool VPO Sirsa Kheri, Julana Jind, Haryana
Singh
.... Claimants / Workmen
Vs.
1.M/s. Ambassador Sky Chef IGI Airport Complex, Gurgaon Road, New Delhi - 37.
2(*). M/s. Rajpal Singh Rathee & Sons
H. No. 242/2 A & B, Yadvindra Estate,
Old Delhi Road, Gurgaon, Haryana.
(*)(impleaded as party vide order dated 19.09.2008)
3(*). M/s. Sukhmaa Sons & Associates
MEK - 108, Gali No.6, Old Rangpuri Road,
Mahipalpur, New Delhi -10037.
(*)(impleaded as party vide order dated 19.09.2008)
..... Managements
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Date of institution : 01.11.2006
Date of reserving for award : 09.11.2016
Date of award : 15.12.2016
STATEMENT OF CLAIM U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
AWARD
1. CASE OF WORKMEN AS PLEADED IN STATEMENTOFCLAIM FILED ON 01.11.2006 UNDER SECTION 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
(i) Claimants had been appointed as drivers on casual basis since 20012005 and they are being continued as casual employees since the date of their appointments. The management (M/s. Ambassador Sky Chef) is continuously employing new drivers off and on till date. The claimants are seeking regularization of their services as claimants are working continuously with the management since the date of their appointment.
(ii) Claimants were interviewed by General Manager Sh. Murli Kishnan. Their driving test was taken by Transport Manager and Supervisor Sh. Augustian Henry and Sh. Bharadwaj. The Supervisor signed on the Biodata of the claimants, which were submitted to Personnel Manager Sh. B. S. Rana by the claimants. The claimants were sent for medical test and claimants were allowed to work as Drivers with Ambassador Sky Chef. The eyetest, bloodtest, stooltest etc. of the claimants were also carried out at the behest of Ambassador Sky Chef.
(iii) Claimant no. 1 Satbir Singh joined the management company on 31.03.2003 as Driver. Claimant was given Airside Driving Permit which was valid upto 05.12.2003, 31.08.2004, 30.09.2004, 31.03.2005, 31.10.2005, 31.12.2005 and 30.03.2006. Claimant was also issued Airport Entry Pass with validity upto 31.03.2004, 30.09.2004 and 31.03.2005. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 30.12.2005 and 30.03.2006. His services have been discontinued w.e.f.
01.04.2006 without any reason or without following the provisions of Industrial Dispute Act, 1947. Claimant No. 3 (sic) was told that he is being given break in the service and Page 2 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 would be reemployed after few months. The break is being given to deprive him of the benefits granted under Industrial Dispute Act as claimant has worked continuously since 31.03.2003.
(iv) Claimant no. 2 Sukhbir joined the management company on 01.06.2003 as driver. He was given Airside Driving Permit which was valid upto 17.05.2003 and 14.07.2006. He was also issued Airport Entry Pass with validity upto 31.03.2004, 30.09.2004 and 31.10.2005. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 30.12.2005, 30.03.2006 and 30.06.2006. Services of claimant no. 4 (sic) have been discontinued w.e.f. 01.07.2006 without any reason or without following the provision of Industrial Dispute Act, 1947. The management is in need of drivers as it is continuously appointing fresh drivers in place of claimants. He is being given artificial break in his service as he has worked continuously since 01.06.2003.
(v) Claimant no. 3 Sanjay Ujinwal joined the management company on 27.06.2004 as Driver. He was given Airside Driving Permit which was valid upto 01.10.2004, 31.03.2005, 30.06.2006. He was also issued Airport Entry Pass with validity upto 31.10.2005. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 30.06.2006. Services of claimants no. 6 (sic) have been discontinued since 01.07.2006 to deprive him of the benefits under the Industrial Dispute Act, 1947 and without following the principle of last come first go.
(vi) The claimant no. 4 Vikram Singh joined the management company on 13.07.2004 as driver. He was given Airside Driving Permit which was valid upto 31.03.2005. He was also issued Airport Entry Pass with validity upto 17.08.2004 and 31.10.2005. He was also issued Airport Entry Pass with validity upto 17.08.2004, 31.10.2005. He was also given daily permit valid upto 17.08.2004. Services of claimants no. 6 (sic) have been discontinued in August 2005 on regular basis and thereafter he had been employed for 2 to 3 months or for 3 to 4 weeks and he was paid Page 3 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 for the period he worked by getting his signatures on plain paper. He was asked to take break in service after March 2006 with the assurance of reemploying him on regular basis after this break but till date he has not been reemployed on regular basis by the management to deprive him of the benefits under the provisions of Industrial Dispute Act, 1947.
(vii) Claimant No. 5 Narender Singh joined the management company on 02.07.2005 as Driver. He was given Airside Driving Permit which was valid upto 18.11.2005, 20.05.2006 and 21.08.2006. He was also issued Airport Entry Pass with validity upto 21.08.2005 and 20.02.2006. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 21.08.2005, 20.02.2006 and 20.05.2006. His services have been discontinued w.e.f. 04.06.2006 without any reason or without following the provisions of Industrial Dispute Act, 1947. Claimant no. 9 (sic) was told that he is being given break in the service and he would be reemployed on regular basis after 34 months. This break is being given to deprive him of the benefits granted under Industrial Dispute Act, 1947 as he has worked continuously since 02.07.2005.
(viii) The claimant no. 6 Sandeep Kumar joined the management company on 17.10.2005 as Driver. He was given Airside Driving Permit which was valid upto 04.08.2006 and 08.07.2007. He was also issued Airport Entry Pass with validity upto 31.12.2007. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 09.11.2005, 04.05.2006, 08.02.2006 and 06.05.2006. His services have been discontinued w.e.f. August 2006 without any reason or without following the Industrial Dispute Act. Claimant No. 9 (sic) was told that he will be given break in the service and he would be reemployed on permanent basis after 2 to 3 months but he has not been reemployed till date by the management company. This break is being given to deprive him of the benefits granted under Industrial Dispute Act, 1947 as he has worked continuously since 17.10.2005.
(ix) Claimant no. 7 Suresh Kumar, s/o Sh. Manphul Singh joined the management
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company on 07.08.2005 as Driver. He was given Airside Driving Permit which was valid upto 10.02.2005. He was also issued Airport Entry Pass with validity upto 04.08.2005. He has also been given Daily Permit by Bureau of Civil Aviation with validity upto 04.08.2006. His services have been discontinued w.e.f. July 2006 without any reason or without following the Industrial Dispute Act, 1947. Claimant no. 10 (sic) was told that he is being given break in the service and he would reemployed on permanent basis after 2 to 3 months but he has not been reemployed till date by the management company. This break is being given to deprive him of the benefits granted under Industrial Dispute Act, 1947 as he has worked continuously since 07.08.2005.
(x) The claimants are not being paid the overtime wages for the overtime hours of work. They are being paid half of the amount for overtime hours of work as against the Standing Orders, Rules and practice in Ambassador Sky Chef and all other similar catering services. Each claimant is being asked to work 16 to 18.(sic)
(xi) The claimants sent demand notice dated 21.09.2006 through Regd. AD but management has not taken any action.
With these averments, claimants prayed for, (a) to reinstate the claimants with back wages and continuity in service and other consequential benefits; (b) to regularize the services of claimant workman as permanent workmen with the Ambassador Sky Chef from the date of their joining and to pay them the same salary and other benefits as are being given to permanent employees doing the same work and for same hours of working and (c) to pay the arrears of their wages at par with regular / permanent alongwith bonus, earned leave and other benefits to the claimants.
2. CASE OF MANAGEMENT OF M/S. AMBASSADOR SKY CHEF, MANAGEMENT NO.1 AS PLEADED IN WRITTEN STATEMENT OF DEFENCE. PRELIMINARY OBJECTIONS:
(i) There existed no relationship of employer and employee or privity of contract between the claimants and the management (i.e. Ambassador Sky Chef). The claimants Page 5 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 to the knowledge of management at some point of time were in the employment of independent contractors who had been awarded some contract to provide labour for performing the obligation arising out of the respective contracts. The management is duly registered under the Contract Labour (Regulation & Abolition) Act, 1970 and independent contractors who were awarded contracts had proper licence from the authorities prescribed under the Contract Labour (Regulation & Abolition) Act, 1970.
The contract labour has not been prohibited in the area of operation of the establishment of the management.
(ii) The petition as filed by claimants is bad in law as the claimants have failed to implead their employers under whom they were working. The petition, therefore, is bad and not maintainable for non - joinder of necessary parties.
(iii) The petition / claim filed by the claimants numbering 7 is otherwise not maintainable since only an individual workman / claimant can file his case pertaining to section 2A of the Industrial Disputes Act, 1947. The present claim since has been filed by a bunch of individuals; as such, the same is beyond the provisions of Section 10 (1) (4) (sic) of the Industrial Disputes Act, 1947 and, therefore, is liable to be rejected.
(iv) The petition is even otherwise not maintainable under the provisions of section 10 (1) (4) (sic) of the Industrial Disputes Act, 1947 since the cases of claimants do not fall under the provisions of section 2A of the Industrial Disputes Act, 1947. The grievances whereof redressal is being claimed through this case do not form part of section 2A of the Industrial Disputes Act, 1947 for want of espousal.
(v) This Court lacks territorial jurisdiction to entertain and adjudicate the present case which has been filed by the claimants before this Court as if the establishment of management falls with the territorial jurisdiction of this Court which is contrary to the facts as the establishment of management falls within the territorial jurisdiction of Police Station Mahipalpur, New Delhi 37 and the area of said Police Station Mahipalpur has Page 6 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 not been specified in the Notification No.F25(1)/Sectt./Lab./06/3268 dated 15 th September, 06 issued by the Government of National Capital Territory of Delhi, Labour Department, 5, Sham Nath Marg, Delhi - 54 specifying the jurisdiction of the Labour Courts for the purpose of sub - section (2) of section 33C and section 2A of the Industrial Disputes Act, 1947 which shall have the police station wise area jurisdiction as shown against concerned Labour Court. The Court No.12 has the area falling within the police station of Vasant Kunj, R. K. Puram, Vasant Vihar, Delhi Cantt. and Naraina. The same notification is also applicable to the matters falling with the scope of section 2A of the Industrial Disputes Act, 1947. The establishment of the management falls within the police station area Mahipalpur which does not fall within the territorial jurisdiction of this Court. As such, this case is liable to be rejected summarily.
(vi) The provision for filing direct case under section 10 (4) (sic) (to be correct - 10 (4A)) of the Industrial Disputes Act, 1947 is applicable only when there is any action of dismissal, discharge, retrenchment or otherwise termination of services of a workman by his employer, as such no industrial dispute as defined under section 2A of the Industrial Disputes Act, 1947 has arisen and the present matter does not constitute an industrial dispute to be covered under section 10 (4) (sic) (to be correct - 10 (4A)) of the Industrial Disputes Act, 1947 for want of espousal.
(vii) The claimants are guilty of suppression of material particulars and have not come to this court with clean hands; as such, the petition is liable to be rejected.
(viii) The claim is not signed and verified as required under the law, as such, it merits rejection.
(ix) The claim pertaining to Vikram Singh has been filed beyond the period of 12 months from the alleged date of cause of action; as such the same is liable to be dismissed.
(x) There is no proper and valid demand raised by the claimants to constitute an
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industrial dispute.
ON MERITS
Management, while denying the case as pleaded by claimants in the statement of claim, pleaded that none of the claimants was appointed by management as a driver on any basis what to say on casual basis during the alleged period 2001 - 2005. The claimants at no point of time were employed by management. The management has got its regular employees and in addition to that the independent contractors, may be one or other, who deploys its workforce / labour to perform duties with the management to fulfil his obligation arising out of the contract awarded to the said contractor by the management. The management is registered under the C L (R & A) Act, 1970 and its contractors are also duly licensed. This is no justification in the desire of claimants to get regularised with the management. They have altogether been working with independent contractors who were their pay master and were supervising their work. The said contractor, to the knowledge of the management, were duly covered under the PF and ESI and the code numbers allotted to them by such departments were different then the codes allotted to the management. The claimants were deployed to work by their employer (independent contractors) to work as driver with the management.
Management denied that any medical test was carried out at the behest of management. Management further pleaded that management is engaged in food business and is catering passengers of various international and domestic airlines and, as such, any person connected with the working of the establishment, may it be a direct employed person or a person employed through an independent contractors, shall have to go medical test to show that he is medically fit.
Claimant Satbir Singh was never employed by management, as such, his contention of having joined the management on 31st March, 2003 as a driver is baseless. The validity of the airside permit and airport entry pass has no relevance in the facts and circumstances of the case since claimant no.1 was not an employee of the management. Management deals in food business and it supplies food to various domestic and Page 8 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 international airlines for the catering of the passengers and for that purpose the person whosoever visits the restricted area, his entry is regulated by the government agencies and same procedure is applicable for directly recruited employees of management or for the employees deployed by independent contractor to work for the management.
Since claimant no.1 was never employed by management there is no question of his services being discontinued by the management or for his being told anything in this regard. The choice of the employees deputed by the independent contractors was strictly the prerogative of the independent contractor and management never had any say in this regard.
Claimant no.2 was also not appointed by management as a driver on 01.06.2003 as alleged. The averments pertaining to validity period of airside driving permit and entry pass has no relevance for the reason already given hereinabove. As claimant no.2 was not an employee of management, as such, there was no occasion to discontinue his services by management. There was no question of claimant being given any artificial break by management as the claimant was never the employee of the management.
Claimant no.3 was not employed by management as a driver at any point of time. The averments pertaining to validity of permit and and pass have no relevance as already stated hereinabove. The claimant was working at the sweet will of his employer (i.e. independent contractor) and management had no control.
Claimant no.4 was never employed by management. The validity period of permit and pass again has no relevance. Claimant was not issued these passes by the management. As claimant was not in the employment of management, there was no question of his services being discontinued in August 2005 by the management. The claimant has fabricated the story to support a frivolous claim.
Sh. Narinder Singh was never employed by management as a driver. The validity of permit and pass again has no relevance as already stated. The management has not issued airside driving permit or airport entry pass to any of the claimants. As the claimant was not in the employment of management, there was no question of his Page 9 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 services being discontinued by management. In this petition there is no claimant no. 9, as such, there was no occasion for the management to tell claimant no.9 about break in service or giving assurances as alleged. As the claimant was never in the employment of management, there was no question of his being given break in service by management.
Mr. Sandeep Kumar was not employed by management as a driver w.e.f. 17.10.2005. The validity of driving permit and entry pass has no relevance for the reasons already disclosed. He was not given any daily permit by management. There was no occasion for discontinuing the service by management as claimant no.6 was never an employee of management. As there is no claimant no.9 in the present petition, there was no question of his being told anything to the effect as disclosed in statement of claim. There was no question of giving any break in service to claimant by management for want of relationship of employer and employee between the parties. Claimant was deputed to work by his employer with management and only his employer (i.e. independent contractors) exactly can tell about his effective date and period of working.
Mr. Suresh Kumar was not employed by the management as a driver. He was not issued driving permit or entry pass by the management as the documents were issued by government agencies to regulate entry in restricted areas. As the claimant was not an employee of management, there was no question for his services being discontinued. In this petition there is no claimant no. 10, as such, averments pertaining to the claimant no. 10 being told anything are baseless.
NONE OF THE CLAIMANTS was an employee of management, as such there was no question of their being paid any overtime wages by management. The claimants were not the employees of the management and, as such, there was no question of the management to ask the claimants to work for 16 to 18 hours a day as alleged. Management also pleaded that averments made by claimants about demand notice are matter of records and there was no justification in the demand notice. At last management prayed for dismissal of this petition with exemplary costs.
3. REJOINDER Page 10 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 Claimants filed rejoinder to the written statement of management (M/s. Ambassador Sky Chef) denying the stand taken by the management in the WS and reaffirming the averments made by him in the statementofclaim.
4. ISSUES Vider order dated 07.03.2007 following issues were framed by ld predecessor of this Court:
(i) Whether there exists any relationship of workman and employer between the parties? OPW
(ii) Whether the petition is not maintainable in view of preliminary objection No. 2 in the written statement?OPM.
(iii) Whether the management is duly registered under contract labour (R&A) Act 1970 and has awarded contact to different independent contractors, having proper license from the authority? If so to what effect? OPM
(iv) Whether the joint petition filed directly by the workmen is maintainable? OPW
(v) Whether the relief in prayer clause (b) and (c) by the workmen in the claim petition is maintainable by way of raising direct industrial dispute before labour court? OPW
(vi) Whether this court has territorial jurisdiction to entertain and adjudicate the present industrial dispute? OPW
(vii) Whether the services of the workmen were terminated by the management, as alleged in preliminary objection No. 9 in the written statement? OPM
(viii) Whether claim of the workman Sh. Vikram Singh is barred by time as alleged in preliminary objection No. 9 in the written statement? OPM.
(ix) To what relief, if any, are the workmen entitled from management.
VIDE ORDER DATED 21.03.2007 ISSUES NO. 4 & 6 were treated as preliminary issues. Regarding preliminary issues workman Satbir Singh examined himself as WWP1 Satbir Singh. He was crossexamined by ld counsel for management (M/s. Ambassador Sky Chef). Management examined MW1 Mr. Hari Chand. Vide order dated 05.05.2010 these issues were decided in favour of workmen / claimants.
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5. APPLICATION UNDER SECTION 10 OF THE INDUSTRIAL DISPUTES ACT, 1947 AND ANOTHER APPLICATION FOR PRODUCTION OF DOCUMENTS MOVED BY WORKMEN.
On 22.02.2008 file was put up on these applications . Management filed reply to application under section 10 of the Industrial Disputes Act, 1947 on 09.05.2008. This application was not pressed by workmen at any subsequent stage. Same is hereby disposed off as not pressed / in fructuous at this stage.
ANOTHER application was moved by workman for directing the management no.1 to produce original documents in possession of management. This application remained pending and management filed reply to this application on 11.07.2016. Vide order dated 25.07.2016 this application was disposed off. The said order dated 25.07.2016 reads as under: "25.07.2016
1. This order shall dispose off an application supported with affidavit dated 21.02.2008 moved on 22.02.2008 by workmen for direction to M/s. Ambassador Sky Chef to produce the original documents which are in their possession: Sl. No. Particulars
(i) Appointment letters
(ii) Attendance Register of month of May, 2005.
(iii) Overtime statement book of 12.2005 and 25.12.2005
(iv) Duty Roaster of 16.08.2005.
(v) Airside Driving Permit with validity from the year 2003 to 2007.
(vi) Airport Entry Pass with validity from the year 2003 to 2007.
(vii) Daily permit issued by Bureau of Civil Aviation, with validity from the
year 2003 to 2007.
(viii) Demand Notice dated 21.09.2006
2. Management filed reply to this application on 11.07.2016.
3. I have heard Mr. Rahul Pandey, Adv for workmen and Mr. Saumitra Singhal, Adv for all the managements and gone through material available on judicial file carefully.
4. In its reply management no.1 has pleaded that it had hired the services of workmen through a Contractor and, as such, question of management no.1 being in possession of documents at sr. no. (i) and (iii) to (viii) does not arise. It Page 12 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 further pleaded that these documents were either issued by Airport Authorised / Contractor.
Also management no.1 has pleaded that management no.1 being a principal employer used to maintain the attendance register and, as such, original of the same for the May, 2005 is being annexed as Annexure - A. It is noted that vide order dated 11.07.2016 Mr. Hari Chand, ARM1 had brought with him Muster Roll for the period from April 2005 to March 2006 and the same was offered for inspection to the workmen as well as ld. Counsel for workmen.
Further, vide order dated 11.07.2016 ld. Counsel for managements submitted that the document at Sr. No.(iv):Duty Roaster of 16.08.2005 cannot be produced as it is very old record. In this regard on 21.07.2016 affidavit of Mr. Hari Chand was filed.
Also as regards document at Sr. No. (viii): Demand Notice ld. Counsel for management submitted that he can make an attempt to search for the same and produce the same, if same is available.
In the course of arguments ld. Counsel for workmen submitted that as per WS of the management no.2, management no.2 has pleaded that Airport passes and Airside Driving Permit were given to the claimant / workmen by management no.1 as they were required to drive in sensitive area. Further ld. Counsel for workmen has submitted that on the documents produced by the workmen against the column Agency, name of Management is mentioned and name of management no.2 is not mentioned.
Ld. Counsel for managements had submitted that management no.1 not being the issuing authority with regard to documents at Sr. No. (v), (vi) and (vii), management no.1 cannot be asked to produce these documents. Further ld. Counsel for managements submitted that these documents were issued by Airport Authorities and could very well have the summoned from the said Authority during the course of workman evidence. Further ld. Counsel for the managements submitted that application in hand merits dismissal inasmuch as WE was closed by ld. ARW on 21.08.2012 without seeking disposal of application in hand. Also ld. Counsel for managements submitted that as per workmen original documents were in possession of workmen at some point of time and there is no proof of workmen surrendering these documents and mere saying that workmen surrendered these documents is no proof of such assertions.
It is noteworthy that final arguments in this case were heard on 21.11.2015 and vide order dated 05.07.2016 it was noticed that application in hand had not been disposed of. In my considered opinion directions for production of records can be given to management no.1, if and only if, management no.1 is admittedly in possession of such records. It is noteworthy that all the parties have already led evidence which they intended to lead. Effect of non producing of records by any of the parties can be considered by the Court while passing the final award keeping in view the totality of the facts and circumstances of this case as they are made out on the basis of material Page 13 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 available on judicial file. In my considered opinion, in the totality of the facts and circumstances of this case, no directions as prayed for deserves to be given to the management no.1.
5. NOTHING EXPRESSED HEREIN SHALL TANTAMOUNT TO EXPRESSION OF MY OPINION ON MERITS OF ANY ASPECT LEGAL OR FACTUAL ARISING WHILE PASSING THE FINAL AWARD."
6. APPLICATION OF MANAGEMENT FOR IMPLEADING NECESSARY PARTIES.
On 09.05.2008 management moved this application. Workmen filed reply to this application on 02.09.2008. Vide order dated 19.09.2008 this application of management was allowed and M/s. Sukhmaa Sons and Associates and M/s, Rajpal Singh Rathee & Sons were impleaded as parties in this case.
7. CASE OF MANAGEMENT OF M/S. RAJPAL SINGH RATHEE & SONS MANAGEMENT NO.2 AS PLEADED IN WRITTEN STATEMENT OF DEFENCE As alleged, the management no.2 is engaged in the business of providing man power to the various management and for that purpose the answering management is registered under the provisions of the CLRA Act and has got valid license for the said purpose. It provides the manpower to the management no.1 also, which is also registered under the provisions of CLRA Act to hire the contract labour. Management no.2 pleaded that concerned workmen were lastly working with the answering management and were deputed to work with management no.1 under the direct control and supervision of the answering management which was marking their presence, paying the salary and other legal benefits. All the workmen, who were hired by the answering management, were duly covered under the provisions of ESI and EPF Act and the contribution towards these schemes were being deposited by the answering management after deducting from their salary. The answering management entered into contract with the management no.1 since 01.04.2005. Management no.2 pleaded that some of the claimants were initially engaged by the answering management and were deputed to work with the management no.1 and management no.2 admitted that the Page 14 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 claimants were sent for the medical examination by the management no.1. Claimants nos. 1 to 4 were never in the employment of answering management. Claimant no.5 worked with the answering management intermittently from 20.07.2005 to 05.06.2006; claimant no. 6 worked with the answering management intermittently from 17.10.2005 to 12.08.2006 and claimant no.7 worked with the answering management intermittently from 08.08.2005 to 01.08.2006. The workman for the reasons best known to him did not come forward to join the duties and abandoned his job. The management no.2 is still ready to take them back on duty for some other assignments if they so desire. Airport entry passes and daily permits were given by the management no.1 and, as they were required to drive in the sensitive area, their movements were strictly regulated by the Bureau of Civil Aviation and, hence, each and every employee was required to have these passes and permits by the agency and such passes are issued to the recognised agency only (i.e. to management no. 1). Management no.2 pleaded that the claimants were paid the overtime wages whenever their services were taken over and above the duty hours by the answering management. The claimants were given all the legal benefits for which they were entitled to as per the law. At last, management no.2 pleaded that workman has not worked for 240 days preceding the date of the alleged termination or in any calendar year and, hence, he not entitled to the relief claimed.
8. CASE OF MANAGEMENT OF M/S. SUKHMAA SONS & ASSOCIATES MANAGEMENT NO.3 AS PLEADED IN WRITTEN STATEMENT OF DEFENCE As alleged, the management no.3 is engaged in the business of providing man power to the various management and for that purpose the answering management is registered under the provisions of the CLRA Act and has got valid license for the said purpose. It provides the manpower to the management no.1 which is also registered under the provisions of CLRA Act to hire the contract labour. Management no.2 pleaded that some of the claimants were engaged by the answering management and were deputed to work with management no.1 under the direct control and supervision of the answering management, which was marking their presence, paying the salary and Page 15 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 other legal benefits. All the workmen, who were hired by the answering management, were duly covered under the provisions of ESI and EPF Act and the contribution towards these schemes were being deposited by the answering management after deducting from their salary. The answering management had contract with the management till 30.06.2006 and, thereafter, contract was not renewed. All the workmen had settled their account in full and final with the answering management and the left the services. As alleged some of the claimants were lastly working with the answering management and were deputed to work with the management no.1. Management no.3 admitted that the claimants were sent for the medical examination by the management no.1. Claimant no.1 was initially engaged by the answering management on 01.04.2003 and he worked with the answering management in different periods and lastly worked upto 31.03.2006 only. Claimant no.2 was engaged by the answering management on 01.06.2003 and worked upto 30.06.2006. Claimant no.3 was engaged by the answering management on 27.06.2004 and worked upto 30.06.2006 and claimant left the services of the answering management and did not report for duty. Claimant no.4 was engaged by the answering management on 13.07.2004 and worked upto 30.03.2006 and he left the services of the answering management and did not report for duty. Claimant no. 5, 6 and 7 were never in the employment of the answering management. Management no.2 further pleaded that airport entry passes and daily permits were given by the management no.1 and, as they were required to drive in the sensitive area, their movements were strictly regulated by the Bureau of Civil Aviation and, hence, each and every employee was required to have these passes and permits by the agency and such passes are issued to the recognised agency only (i.e. to management no. 1). Management no. 3 pleaded that the claimants were paid the overtime wages whenever their services were taken over and above the duty hours by the answering management. The claimants were given all the legal benefits for which they were entitled to as per the law. At last, management no.3 pleaded that workman has not worked for 240 days preceding the date of the alleged termination or in any calendar year and, hence, he is Page 16 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 not entitled to the relief claimed.
9. REJOINDER All the workmen filed joint rejoinder(s) to the written statements of managements no. 2 and 3 denying the stand taken by these managements and reaffirming the averments made by them in the statementofclaim.
10. Vide order dated 30.04.2009 following additional issues were reframed:
(i) Whether the claimant no. 1 to 4 were the workmen of management no.
2 M/s. Rajpal Rathi & Sons and whether they abandoned their service with the management no. 2?
(ii) Whether the claimant no. 5, 6 and 7 were the workman of management no. 3 M/s Sukhma Sons & Associates and whether they abandoned their service with the management no. 3?
(iii) Relief. 11. EVIDENCE
Workman Satbir Singh appeared in the witness box as WW1 Satbir Singh, who relied upon documents namely Ex.WW1/1- Appointment Letter dated 15.10.2005; Ex. WW1/2 Airside Driving Permit; Ex. WW1/2A Airside Driving Permit; Mark - WW 1/2A, B, C, D Airside Driving Permit; Mark - WW1/3, 3A, B, C - Airport Entry Pass; Mark - WW1/4, 4A - Daily Permit; Ex. WW1/5 (Colly.) Duty Roaster; Ex. WW1/6 (colly.) Over Time Statement of Staff from Grade VI to IX; Mark WW1/7, 7A Photocopy of Attendance Register for May, 2005. Documents mentioned as Ex.WW 1/3, Ex. WW1/4 and Ex. WW1/7 in the evidence affidavit of WW1 Mr. Satbir Singh are photocopies, the originals of which, as deposed, are in the possession of management. During his crossexamination WW1 Mr. Satbir Singh produced Ex.WW 1/WM1 - Airside Driving Permit and Ex. WW1/WM1 - Airside driving permit. Workman WW1 Satbir in his cross examination was confronted with document namely Ex. WW1/M1 Driving License of workman Satbir Singh; Ex.WW1/M6 - Driving Licence of workman; Ex.WW1/M7 - Airside Driving Permit, Mark - A - Salary Sheet Page 17 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 for April 2005 and Mark - B - Salary Sheet for March 2005.
Workman Sukhbir Singh appeared in the witness box as WW2 Sukhbir Singh and relied upon documents already exhibited as Ex. WW1/1 to Ex. WW1/7. However on the documents it has been mentioned as WW2/1 to WW2/7A WW2/1 Appointment letter dated 10.10.2005 of workman Sukhbir; WW2/2 Certification (valid upto 31.12.2003) in favour of workman Sukhbir; WW2/2A AAI Airside Driving Permit; WW2/2B Certification (valid upto 30.09.2004) in favour of workman Sukhbir; WW2/2C Airside Driving Permit of Sukhbir; WW2/3 Airport Entry Pass valid up to 31.03.2004: WW2/3A Airport Entry Pass valid up to 30.09.2004; WW2/3B Airport Entry Pass valid up to 31.10.2005; WW2/4 Daily Permit (date of issue 31.10.2005) of Driver Sukhbir issued by Govt. of India, Bureau of Civil Aviation; WW2/4A Daily Permit (date of issue 30.12.2005) of Driver Sukhbir issued by Govt. of India, Bureau of Civil Aviation; WW2/4B Daily Permit dated 30.03.2006 of Driver Sukhbir issued by Govt. of India, Bureau of Civil Aviation; WW2/5 Duty Roster Drivers; WW2/6 Overtime Statement of Staff From Grade VI to IX of dated 24.12.2005; WW2/6A Overtime Statement of Staff From Grade VI to IX of dated 25.12.2005 and WW2/7 and WW2/7A Attendance Register for the month of May, 2005. In the course of his cross examination WW2 Mr. Sukhbir Singh referred to Ex. WW1/MW1 - Driving permit issued after 31.10.2005. In his crossexamination WW2 Sukhbir Singh was confronted with Mark - B - Salary Sheet for March 2005.
Workman Sanjay Ujinwal appeared in the witness box as WW3 Sanjay Ujinwal and relied upon the documents Mark WW3/1 to Mark WW3/7A Mark WW3/1 Appointment letter dated 10.10.2005 of workman Sanjay Ujinwal; Mark WW3/2 Certification in favour of workman Sanjay Ujinwal; Mark WW3/2A, B Airside Driving Permit; Mark WW3/3 Airport Entry Pass valid up to 31.10.2005; Mark WW3/4 Daily Permit of Driver Sanjay Ujinwal issued by Govt. of India, Bureau of Civil Aviation ; Mark WW3/5 Duty RosterDrivers; Mark WW3/6 Overtime Statement of Staff From Grade VI to IX of dated 23.12.2005; Mark WW3/6A Overtime Statement of Staff From Page 18 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 Grade VI to IX of dated 24.12.2005; Mark WW3/6B Overtime Statement of Staff From Grade VI to IX of dated 25.12.2005; Mark WW3/7 and Mark WW3/7A Attendance Register for May 2005. In his crossexamination WW3 Mr. Sanjay Unjiwal was confronted with Ex.WW3/M1 - Account opening form and Ex.WW3/M2 - Register of Payment of Wages.
Workman Suresh Kumar appeared in the witness box as WW4 Suresh Kumar and relied upon the documents Mark WW4/1 to Mark WW4/7. However it is noted that these documents infact mention the name of one Sandeep and not Mr. Suresh Kumar. Workman in his crossexamination was confronted with document Ex. WW4/M1 Register of Payment of Wages and Ex. WW4/M2 - Airside Driving Permit.
Workman Narinder Singh (at Sr. No. 5) and Sandeep Singh (at Sr. No. 6) filed their affidavits but did not appear in witness box to formally tender their affidavits as their examinationinchief and suffer cross - examination. Workman at Sr. No.4 Vikram Singh even did not file his evidence affidavit. Vide orders dated 28.09.2011 and 22.11.2011 he was stated to have expired and his LRs did not move any application / contact the ld ARW. WE was closed on 21.08.2012 by ld ARW.
Management no.1 examined MW1 Mr. Hari Chand, Asst. Manager (Liaison) with management no.1 and tendered his examinationinchief vide affidavit Ex.MW1/A and relied upon documents namely Ex. MW1/1 - Letter of Authority; Ex. MW1/2 (Colly. 4 pages) - Appointment Letter; Ex. MW1/3 (Colly. 4 pages) - Certificate of Registration; Ex. MW1/4 (Colly. 2 pages) - Muster Roll.
Management no.2 examined MW2 Mr. Sajjan Singh, Supervisor with management no.2 and tendered his examinationinchief vide affidavit Ex.MW2/A and relied upon documents namely Ex. MW2/1 - Letter of Authority; Ex. MW2/2 (Colly.) Licence.
Management No.3 also examined MW3 Mr. Prem Shankar Dubey, Supervisor with management no.3 and tendered his examinationinchief vide affidavit Ex.MW3/A and relied upon documents namely Ex. MW3/1 Letter of Authority; Ex. MW3/2 Page 19 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 (Colly.) Licence; Ex. MW3/3 (Colly.) - Salary sheets; Ex. MW3/4 - Airside Driving Permit of workman; Ex. MW3/5 (colly.) - Airside Driving Permit.
Management No.1 also examined MW4 - Mr. Raj Kumar Saini, Dealing Clerk from ESIC, Local Office Palam, Near Ramphal Chowk, Sector - 7, Dwarka, New Delhi
- 110075 and relied upon documents namely Ex. MW4/1 - Return of Contribution for the period from April 2004 to September 2004; Ex. MW4/2 - Return of Contribution for the period from October, 2005 to March 2006; Ex. MW4/3 - Declaration Form (Regulation 11 & 12).
Management No.1 also examined MW5 Mr. J P Bindra, Dealing Clerk from EPFO, (RO - Delhi - North) Bhavishya Nidhi Bhawan, 28, Community Center, Wazirpur Industrial Area, Delhi - 052 and relied upon documents namely Ex. MW5/1 - Form No. 9 (Revised) and Ex. MW5/2 - Status Report; Ex. MW5/3 - Subscribers Ledger Card as on 12.09.2014; Ex. MW5/4 - Subscribers Ledger Card as on 12.09.2014; Ex. MW5/5 - Form 6A Revised Currency Period: March 2004 to February 2005; Ex. MW5/6 - Form 6A Revised Currency Period: March 2004 to February 2005.
Management No.1 also examined MW6 Mr. Rajender, Assistant, ESIC Local Office, 421/7/16, Civil Line, Rajeev Chowk, Gurgaon, Haryana and relied upon documents namely Ex. MW6/A - Certificate dated 12.01.2015.
Management No.1 also examined MW7 Mr. Rakesh Kumar Raju, Social Security Assistant from Office of Regional PF Commissioner, Bhavishya Nidhi Bhawan, Plot No.23, Sector - 44, Gurgaon, Haryana and relied upon documents namely Ex. MW7/A - Office Order / Ref. No. HR/GGN/A/SI/8183/17978/ and Ex.MW7/B - Subscribers Ledger Card as on 12.01.2015.
Management No.1 also examined MW8 Mr. Praveen Kumar, Trainee Executive (HR), Narang International Hotels Pvt. Ltd. Unit the Ambassador Sky Chef, RZ 11, Dharampura, Najafgarh, New Delhi - 110043 and relied upon documents namely Ex. A (Colly. 4 pages) - Member Balance Information. ME was closed on 06.04.2015.
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12. ARGUMENTS
I have heard Mr. Rahul Pandey, Adv. for workman and Mr. Saumitra Singhal, Adv. for all the managements. Ld. counsel for workmen relied upon case laws reported as (i) International Air Cargo Workers Union Vs. International Airport Authority of India 2001 LawSuit(Mad) 893; (ii) Sakharam Govind Kadam Vs. David Brown Greaves Ltd. 1999 LawSuit (Bom) 703; (iii) E. Krishna and Others Vs. Director General, Indian Council of Medical Research and Another 1993 II LLJ - 239; (iv) Steel Authority of India Limited Vs. Gujarat Mazdoor Panchayat 2003 LawSuit(Guj)529 and (v) Govt. School Teachers Association (Migrants) Regd. & Ors. Vs. Union of India & Ors. WP (C) 3989/2010 decided on 18.05.2015 by Hon'ble Mr. J. Rajiv Shakdher Judge, Delhi High Court.
Ld. counsel for managements relied upon case laws reported as (i) Bareilly Electricity Supply Co. Ltd. Vs. The Workmen and Ors. AIR 1972 SC 330; (ii) Award passed in DID No. 288/14 titled as Hari Om Vats & ANR. Vs. M/s. Ambassador Sky Chef on 30.09.2015 by this Court; (iii) Range Forest Officer Vs. S. T. Hadimani 2002 (1) SCR 1080; (iv) Workmen of the Food Corporation of India Vs. M/s. Food Corporation of India AIR 1985 SC 670; (v) Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Anr. Appeal (Civil) 5969/2004 Decided on 13.09.2004 by HMJs Arijit Pasayat & C. K. Thakker Judges Hon'ble Supreme Court of India; (vi) The Agricultural Produce Market Vs. The Weighmen's Association Decided on 29.05.2006 by HMJ N. Kumar Judge, Hon'ble Karnataka High Court; (vii) M. P. Electricity Board Vs. Hariram Appeal (Civil) 2240 / 2001 Decided on 27.09.2004 by HMJs N. Santosh Hegde & S. B. Sinha Judges, Hon'ble Supreme Court of India; (viii) Deena Nath & Ors. Vs. National Fertilizers Ltd. & Ors. AIR 1992 SC 457; (ix) Municipal Corporation. Faridabad Vs. Siri Niwas Appeal (Civil) 1851/2002 Decided on 06.09.2004 by HMJs N. Santosh Hegde & S. B. Sinha Judges, Hon'ble Supreme Court of India; (x) Chand Fertilizers Vs. Labour Commissioner, Fertilizer 2006 (3) AWC 2254 and (xi) Municipal Corporation of Greater Bombay Vs. Shramik Sangh and Ors. Material on judicial file Page 21 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 perused. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
13. My ISSUEWISE findings are as under: A ISSUES AS FRAMED ON 07.03.2007:
ISSUE No. 2Whether the petition is not maintainable in view of preliminary objection No. 2 in the written statement?OPM.
Vide order dated 19.09.2008 managements no.2 and 3 were impleaded as parties to present proceedings. Thus, issue has lost its significance. Ordered accordingly.ISSUE No. 4
Whether the joint petition filed directly by the workmen is maintainable? OPW ISSUE No. 6 Whether this court has territorial jurisdiction to entertain and adjudicate the present industrial dispute? OPW Issues no. 4 & 6 have already been decided vide separate detailed order dated 05.05.2010. In the order dated 05.05.2010 it is specifically mentioned in para. 19 that the said order would form part of the award which would be passed finally.ISSUE No. 5
Whether the relief in prayer clause (b) and (c) by the workmen in the claim petition is maintainable by way of raising direct industrial dispute before labour court? OPW This case has been filed u/s.2A of the Industrial Disputes Act, 1947. Prayers (b) and (c) of the workmen are obviously out of the scope of provisions of section 2A. But issue as regards illegal termination of services of claimants / workmen by management falls within the scope of section 2A. Issue is decided accordingly.
ISSUE No. 7Whether the services of the workmen were terminated by the management, as alleged in preliminary objection No. 9 in the written statement? OPM Page 22 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 Preliminarily Objection No. 9 in the WS of the management pertains to limitation aspect of claim filed by Mr. Vikram Singh and none else. In this preliminary objection there is no mention of termination of services of workmen by the management. Issue appears to have been framed inadvertently and same is hereby deleted.
ISSUE No. 8Whether claim of the workman Sh. Vikram Singh is barred by time as alleged in preliminary objection No. 9 in the written statement? OPM.
As per averment made in statement of claim services of Mr. Vikram Singh were discontinued in August, 2005 on regular basis and thereafter he was allegedly employed for 2 / 3 months or 3 to 4 weeks and he was paid for the period he worked by getting his signature on plain paper. Mr. Vikram Singh has not specifically mentioned the date of termination of his services but these averments suggests that his services materially and substantially stood terminated by the management in August 2005. Workmen have filed this industrial dispute under section 10 (4A) of the Industrial Disputes Act, 1947 on 01.11.2006. Section 10 (4A) prescribes the limitation of 12 months from the date of communication to the workman of the order of discharge, dismissal, retrenchment or termination. Thus, obviously claim filed by the workman Mr. Vikram Singh is liable to be outrightly rejected as the same has been filed after the expiry of 12 months from the date of alleged discontinuation / termination of his services in August 2005.
Also it is noted that as per orders dated 28.09.2011 and 22.11.2011 Mr. Vikram Singh was stated to have expired but his LRs did not move any application / contact ld. ARW. Mr. Vikram Singh has not appeared in the witness box to prove his case on judicial file. In such circumstances claims of Mr. Vikram Singh are liable to be discarded / rejected on merits also.
B ISSUES AS FRAMED ON 07.03.2007:
ISSUE No. 1Whether there exists any relationship of workman and employer between the Page 23 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 parties? OPW ISSUE No. 3 Whether the management is duly registered under contract labour (R&A) Act 1970 and has awarded contact to different independent contractors, having proper license from the authority? If so to what effect? OPM ISSUE No.9 To what relief, if any, are the workmen entitled from management.
ADDITIONAL ISSUES AS FRAMED ON 30.04.2009 ISSUE No.1 Whether the claimant no. 1 to 4 were the workmen of management no. 2 M/s. Rajpal Rathi & Sons and whether they abandoned their service with the management no. 2?
ISSUE No.2 Whether the claimant no. 5, 6 and 7 were the workman of management no. 3 M/s Sukhma Sons & Associates and whether they abandoned their service with the management no. 3?
(Outrightly it is noted that above two issues have not been framed in terms of pleadings of management no.2 and 3. However I shall try to decide the real issues as raised by these managements in their WSs.) ISSUE No.3 Relief.
All these issues, being interconnected, are being taken up under a common discussion. At the outset it is noted that only the workman at Sr. No. 1 Mr. Satbir Singh, Sr. No.2 Mr. Sukhbir Singh, Sr. No. Mr. Sanjay Unjiwal and Sr. No. 7 Mr. Suresh Kumar have appeared in the witness box to prove their cases / versions as pleaded in statement of claim. None of other workmen have appeared in the witness box and these other workmen who have not appeared in the witness box are not entitled to any relief. So this court is supposed to decide the issues mentioned above only in respect of workmen at Sr. No. 1 Mr. Satbir Singh, Sr. No.2 Mr. Sukhbir Singh, Sr. No. Mr. Sanjay Unjiwal and Sr. No. 7 Mr. Suresh Kumar.
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As per workman Mr. Satbir Singh, he joined the management no.1 (M/s. Ambassador Sky Chef) on 31.03.2003 as Driver and his services were discontinued w.e.f. 01.04.2006 without any reason or without following provisions of the Industrial Disputes Act, 1947. As per management no.1 there existed no relationship of employer
- employee between management no.1 and Mr. Satbir Singh, and he was in employment with independent contractor who had been awarded some contract to provide labour for performing obligations arising out of contract. As per management no.2 (M/s. Rajpal Singh Rathee & Sons) claimants at Sr. No. 1 (Mr. Satbir Singh) to 4 were never in its employment. As per management no.3 (M/s. Sukhmaa Sons & Associates) Mr. Satbir Singh was initially engaged by it on 01.04.2003 and he worked with it in different periods and lastly worked upto 31.03.2006.
As per workman Mr. Sukhbir Singh, he joined the management no.1 (M/s. Ambassador Sky Chef) on 01.06.2003 as Driver and his services were discontinued w.e.f. 01.07.2006 without any reason or without following provisions of the Industrial Disputes Act, 1947. As per management no.1 there existed no relationship of employer
- employee between management no.1 and Mr. Sukhbir Singh, and he was in employment with independent contractor who had been awarded some contract to provide labour for performing obligations arising out of contract. As per management no.2 (M/s. Rajpal Singh Rathee & Sons) claimants at Sr. No. 1, 2 (Mr. Sukhbir Singh), 3 and 4 were never in its employment. As per management no.3 (M/s. Sukhmaa Sons & Associates) Mr. Sukhbir Singh while initially engaged by it on 01.06.2003 and he worked with it in different periods and lastly worked upto 30.06.2006.
As per management no.3 (M/s. Sukhmaa Sons & Associates) all the workmen had settled their accounts in full and final with it and left the services.
As per workman Mr. Sanjay Unjiwal, he joined the management no.1 (M/s. Ambassador Sky Chef) on 27.06.2004 as Driver and his services were discontinued w.e.f. 01.07.2006 without any reason or without following provisions of the Industrial Disputes Act, 1947. As per management no.1 there existed no relationship of employer Page 25 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16
- employee between management no.1 and Mr. Sanjay Unjiwal, and he was in employment with independent contractor who had been awarded some contract to provide labour for performing obligations arising out of contract. As per management no.2 (M/s. Rajpal Singh Rathee & Sons) claimants at Sr. No. 1, 2, 3 (Mr. Sanjay Unjiwal) and 4 were never in its employment. As per management no.3 (M/s. Sukhmaa Sons & Associates) Mr. Sanjay Unjiwal while initially engaged by it on 27.06.2004 and he worked with it in different periods and lastly worked upto 30.06.2006 and he left the services of management no.3 and did not report for duty.
As per workman Mr. Suresh Kumar he joined the management no.1 (M/s. Ambassador Sky Chef) on 07.08.2005 as Driver and his services were discontinued w.e.f. July, 2006 without any reason or without following provisions of the Industrial Disputes Act, 1947. As per management no.1 there existed no relationship of employer
- employee between management no.1 and Mr. Suresh Kumar, and he was in employment with independent contractor who had been awarded some contract to provide labour for performing obligations arising out of contract. As per management no.2 (M/s. Rajpal Singh Rathee & Sons) Mr. Suresh Kumar worked with it intermittently from 08.08.2005 to 01.08.2006 and he for reasons best known to him did not come forward to join the duties and abandoned his job. Further as per management no.2 it is still ready to take him back on duty for some other assignments if so desires. As per management no.3 (M/s. Sukhmaa Sons & Associates) claimant nos. 5, 6 and 7 (Mr. Suresh Kumar) were never in its employment.
NOW it is settled proposition of law that initial onus is on the claimant(s) to prove the case, as pleaded by him in the statement of claim, on judicial file by leading cogent and convincing evidence on the touchstone of principle of preponderance of probabilities. None of the workmen namely Mr. Satbir Singh, Mr. Sukhbir Singh, Mr. Sanjay Unjiwal and Mr. Suresh Kumar has been able to prove / corroborate by documentary proof their averments regarding their alleged interview / driving test / submission of bio - data etc. by / to management no.1. Conducting of medical tests by Page 26 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 management no.1, if really so, by itself, in the totality of facts and circumstances of this case, does not establish the existence of relationship of employer and employee between any of these workmen and management no.1. Circumstances under which Airport Entry Passes and Airside Driving Permits happened to be issued by mentioning the name of management no.1 have been well explained by management no.1 and existence of name of management no.1 on these documents by itself, in the facts and circumstances of this case, does not help the workmen in any manner to prove the case as pleaded by them in the statement of claim.
Workmen Mr. Satbir Singh, Mr. Sukhbir Singh and Mr. Sanjay Unjiwal are relying upon appointments letters which have been denied by management no.1. Much reliance cannot be placed by Court on these appointment letters in the totality of the facts and circumstances of this case and particularly because (i) the statement of claim is silent about this appointment letter having been issued to the workman by management no.1. Mention about this alleged appointment letter was very much expected in view of specific / minute details given by workman in the statement of claim regarding their alleged interview / driving test / submission of bio - data and medical test allegedly got conducted by management no.1 and (ii) even these appointment letters do not corroborate the dates of appointment as pleaded by these workmen in the statement of claim. Further inconsistencies about the date of appointment as mentioned by workmen in the statement of claim and these appointment letters have not been explained by the workmen. ALSO VIDE ORDER DATED 11.07.2016 Mr. Hari Chand ARM -1 had brought with him muster roll for the period from April 2005 to March 2006, which was offered for inspection to workmen as well as ld counsel for the workmen. Obviously the muster roll must not have been found containing the name of any of the workmen, otherwise, workmen / ld counsel for workmen would must have pointed out the same to this Court. Muster Roll Ex.MW1/4 also does not contain name of any of the workmen involved herein.
Workmen have not filed on record any documentary proof to show that they Page 27 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 ever, during alleged employment with the management no.1, raised any grievance against management no.1 regarding management no.1 not making payment of due overtime wages to them. WW1 Mr. Satbir Singh, WW2 Mr. Sukhbir Singh, WW3 Mr. Sanjay Unjiwal and WW4 Mr. Suresh Kumar in their crossexamination have deposed that none of them never complained about payment of overtime at reduced rates.
Workman Mr. Satbir Singh is relying upon Ex.WW1/5. He deposed that this document bears the signatures of official of M/s. Ambassador Sky Chef at point - A on each page but WW1 Mr. Satbir Singh failed to tell the name of the official whose signatures appeared at point - A on Ex. WW1/5. All the four workmen who have appeared in witness box have in their crossexamination deposed that each one of them never signed on any salary sheet, payment record or overtime payment register maintained by management no.1. WW1 Mr. Satbir Singh in his crossexamination has deposed that he cannot say if M/s. Sukhmaa Sons and Associates had paid his salary through bank account transfer in the month of July 2005. This answer casts doubt in the version of workmen regarding his employment by management no.1 only. Similar depositions have been made by WW2 Mr. Sukhbir Singh also. WW1 Mr. Satbir Singh has also deposed that he cannot produce any document to show that he has working under the supervision and control of management no.1. WW2 Mr. Sukhbir Singh has also deposed that he was not issued any identity card by management no.1. WW2 Mr. Sukhbir Singh has also deposed that he cannot produce any document to show that he was working under the supervision and control of management no.1.
WW3 Mr. Sanjay Unjiwal also has deposed that he was not issued any identity card by management no.1. WW3 Mr. Sanjay Unjiwal has also deposed that he cannot produce any document to show that he was working under the supervision and control of management no.1. WW3 Mr. Sanjay Unjiwal in his crossexamination admitted that he had an account with Bank of Baroda, Samalkha, New Delhi and his salary used to be transferred in that account. He further deposed that he did not know if salary used to be Page 28 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 deposited by M/s. Sukhmaa Sons and Associates. He admitted account opening form Ex.WW3/M1 but deposed that he did not know if the said account was opened by M/s. Sukhmaa Sons and Associates. He did not specifically / vehemently denied transfer of salary for the month of September 2005 to the tune of Rs.4583/ as mentioned in Ex.WW3/M2 in his above account. WW4 Mr. Suresh Kumar in his crossexamination admitted that he had received salary for the month of October 2005 from M/s. Rajpal Singh Rathee and Sons vide Ex. WW4/M1. This admission suggests that WW4 Mr. Suresh Kumar was an employee of management no.2 inasmuch as, otherwise, there was no occasion for WW4 Mr. Suresh Kumar getting his salary from management no.2.
Nothing favourable to workmen has come out in the course of crossexamination of MW1 Mr. Hari Chand. MW4 Mr. Rajkumar Saini from ESIC has deposed that as per records brought by him he can say that workmen Mr. Sanjay Unjiwal and Mr. Sukhbir Singh were employees of M/s. Sukhmaa Sons and Associates. He has also deposed that as per record brought by him he can say that workman Mr. Satbir Singh was the employee of M/s. Sukhmaa Sons and Associates and his date of appointment was 17.10.2003. Also MW5 Mr. J P Bindra from EPFO has deposed that as per record submitted by him he could say that workmen Satbir Singh, Sanjay and Sukhbir were employees of M/s. Sukhmaa Sons and Associates. Workman Satbir Singh has even withdrawn his PF and EPS as deposed by MW5 Mr. J P Bindra. Records regarding workman Suresh Kumar have not been produced by official witnesses on account of such records having been weeded out as deposed by MW6 Mr. Rajender from ESIC and MW7 Mr. Rakesh Kumar Rajan from EPFO. In view of above detailed discussion it can be, in the totality of facts and circumstances of this case on the basis of preponderance of probabilities, said that all the four workmen namely WW1 Mr. Satbir Singh, WW2 Mr. Sukhbir Singh, WW3 Mr. Sanjay Unjiwal and WW4 Mr. Suresh Kumar have failed to establish on judicial record that they were employees of management no.1 as pleaded by them in the statement of claim, and quite possibly the stand taken by management no.2 and 3 in their respective WSs is worth reliance by this Page 29 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 Court. ISSUE NO.1 AS FRAMED ON 07.03.2007 IS DECIDED AGAINST THE WORKMEN AND IN FAVOUR OF MANAGEMENT NO.1.
AS REGARDS ISSUE NO.3 AS FRAMED ON 07.03.2007 managements nos. 1, 2 and 3 are relying upon various documents namely Ex.MW1/3 - Certificate of Registration, Ex. MW2/2 - Licence in the name of management no.2 and Ex. MW3/2
- Licence in the name of management no.3. What is worth noticing is that these exhibits for the relevant period of engagement of workman do not specifically mention the work of 'DRIVER' for which workmen herein were working with management no.1. But this fact is inconsequential inasmuch as by reason of abovesaid fact only in cannot, in the facts and circumstances of this case, be said that claimants would be taken to have became employees of management no.1. ISSUE is decided accordingly.
HERE WORKMEN HAVE ALLEGED THEIR RELATIONSHIP OF EMPLOYER AND EMPLOYEE WITH MANAGEMENT NO.1. Each of WW1 Mr. Satbir Singh, WW2 Mr. Sukhbir Singh and WW3 Mr. Sanjay Unjiwal in their cross examination has deposed that he will not work anywhere even if he is asked by M/s. Sukhmaa Sons and Associates and that he is not prepared to work with M/s. Sukhmaa Sons and Associates even if they offer employment elsewhere. WW4 Mr. Suresh Kumar has also deposed that he would not work anywhere even if he is asked by M/s. Rajpal Singh Rathee and Sons and that he is not prepared to work with M/s. Rajpal Singh Rathee and Sons even if they offer employment elsewhere. Infact case of each of these workmen is that they were employees of management no.1 and not that of management no.2 or management no.3. Each of the four workmen namely WW1 Mr. Satbir Singh, WW2 Mr. Sukhbir Singh, WW3 Mr. Sanjay Unjiwal and WW4 Mr. Suresh Kumar in his separate evidence affidavit(s) has deposed that he is no link whatsoever with management no.2 and 3. Workmen appear to be claiming no relief against management no.2 and / or management no.3. Workmen did not file any amended statement of claim after impleadment of management no.2 and no.3 as parties herein, meaning thereby that they were intending to proceed with their original statement Page 30 to 31 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:15.12.2016 Satbir & Ors. Vs. M/s. Ambassador Sky Chef & Ors. DID No. 123/16 of claim itself pursuing their claims against management no.1 only. In these circumstances issues as to alleged abandonment of their services by workmen with management no.2 / no.3 or settlement of his accounts with management no.2 / no.3 can be said to have become infructuous / lost significance. NOTICEABLY in the statement of claim there are no averments regarding workmen being unemployed or their having made efforts for alternative employment. FURTHER Ex. WW1/M7 (valid upto 30.06.2008) shows the employment of WW1 Mr. Satbir Singh with DKN C/o OSS AIR MANAGEMENT PVT LTD. WW2 Mr. Sukhbir Singh has deposed that he is working in DTC since 13.01.2009 and he had worked with Spice Jet in the year 2007 - 08 for about 2 years. WW2 Mr. Sukhbir is getting salary of about Rs.20000/ per month in DTC. WW3 Mr. Sanjay Unjiwal has also deposed that he is working in DTC as Driver since 16.06.2009 and before that he used to work as casual Driver on daily wages and used to earn between Rs.200/ - 250/ per day. He has further deposed that he is getting a salary of about Rs.17000/ per month in DTC. WW4 Mr. Suresh Kumar has deposed that now a days he is engaged in agricultural work and before that he used to work as casual driver on daily wages and used to earn between Rs.100/ per day. He also deposed that he had worked with M/s. Paras Travel Lines and on airside driving permit Ex. WW4/M2 was also issued to him.
In view of above detailed discussion workmen WW1 Mr. Satbir Singh, WW2 Mr. Sukhbir Singh, WW3 Mr. Sanjay Unjiwal and WW4 Mr. Suresh Kumar are held to be entitled to no relief against any of the managements. ISSUES ARE DECIDED ACCORDINGLY. Parties to bear their own cost.
14. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 15.12.2016
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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