Delhi District Court
Between The vs The on 1 November, 2022
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER LABOUR
COURT -06, ROUSE AVENUE DISTRICT COURT, D.D.U. MARG,
NEW DELHI.
LIR No. 1501/2016
Date of Institution 19.01.2015
Date of Award 01.11.2022
BETWEEN THE WORKMAN
Sh. Subhash S/o Sh. Sonpal Singh, R/o J-17/223, West Sagarpur, New Delhi-
46
Through Delhi Pradesh Kamgar Ekta Sangh (Regd.) Plot No. 1, Gali No. 2,
Dabri Village, New Delhi-45.
AND
THE MANAGEMENT OF
1.M/s Shaurya Enterprises, D-1/13 DDA Market, BD Block, Janakpuri, New Delhi-58.
2. M/s Shaurya Enterprises Godown, DESU Colony, Institutional Area, Behind Police Station, Hari Nagar, New Delhi-46.
AWAR D 1 By this award I shall dispose of the reference sent by the Joint Labour Commissioner (South West District), Labour Department, Govt. of the National Capital Territory of Delhi arising between the parties named above to this court vide notification No. F.24 548/14/SWD/Lab/13575-579 dated 22.12.2014 and corrigendum Ref. No. F.24 (548/14/Lab/SWD/Corrig/1177-80 dated 25.02.2015 with the following terms of reference:-
"Whether there existed an employer employee relationship between the management and Sh. Subhash S/o Sh. Sonpal Singh and if so, whether services of the claimant have been terminated illegally and /or unjustifiably by the management and if so, to what relief is he entitled?"
2 Notice of the reference was sent to the workman with directions to file statement of claim, which has been filed stating therein that the workman was LIR No. 1501/2016 Page 1 of 8 working with the management at its Godwon since September 1992 as a Chowkidar; that he was doing his work with with full honesty and hard work; that he never gave any chance of complaint to the management in any manner; his work was also satisfactory; that his last drawn salary was Rs. 3100/- which was very less from minimum wages of Rs. 8554/-; that the management did not provide the legal facilities to the workman like appointment letter, attendance card, pay slip, Government holidays, pay as per minimum wages Act etc; that when he demanded the above facilities, management got annoyed and demolished the room in which he was living and terminated his services from 16.07.2012 without any prior intimation or notice; that he was not even paid his earned wages for the period 01.06.2014 till 15.07.2014; that thereafter workman requested the management for reinstatement and payment of his due salary but all in vain; that workman through his union filed a complaint before labour office on 21.07.2014; that the labour inspector called the management along with the record but management did not appear there; that workman sent demand notice to the management through post on 09.08.2014 but the management in its report dated 18.08.2014, refused to pay the due salary and to reinstate the workman; that in the reply management also denied the relationship of employee and employer; that the workman was terminated by the management illegally and unjustifiably; that workman filed his claim before conciliation officer, since the management did not cooperate in conciliation proceedings, the labour officer was left with no option but to referred the same before the labour court for adjudication; that the services of the workman were terminate illegally in violation of Section 25F, G and H and Section 77 and 78, Central Rules, without any prior notice, chargsheet, inquiry; that no notice pay was ever given to the workman, that even no service compensation, gratuity, pending salary, arrears of minimum wages, wages for leave overtime, bonus were given to the workman; that seniority list was also LIR No. 1501/2016 Page 2 of 8 not considered by the management; that the workman is unemployed since the date of his illegal termination; that despite efforts, he could not find any job.
Lastly, it is prayed that an award be passed in favour of the workman and against the management thereby directing the management to reinstate the workman with full back wages, all legal benefits, pay for unemployment period and continuity of services with all other consequential benefits.
3. The management has contested the present case and filed its written statement taking preliminary objection that the workman has not come to the court with clean hands and intention and had concealed material facts; that the workman has filed a false claim; that there is no employer and employee relationship between the claimant and the management; that the claimant never worked under control and supervision of the management and as such no question of termination and non payment of wages arise and claim of the workman be rejected On merits, management specifically stated that claimant was never under the employment of the management. It was further stated that the management replied the demand notice and notice from the conciliation officer. Rest of the contents of the claim were categorically denied and it was prayed that claim of the workman be dismissed with cost.
4. On pleadings of the parties, following issues were framed vide order dated 17.02.2016:-
1. Whether any relationship of employer and employee ever existed between the claimant and the management? OPW
2. If issue no. 1 is decided in favour of the claimant, whether the management ever illegally or unjustifiably terminated services of the claimant ? OPW
3. Relief.LIR No. 1501/2016 Page 3 of 8
5. In workmen evidence, the claimant examined himself as WW1. He tendered his evidence by way of affidavit Ex WW1/A and relied upon documents i.e. Ex WW1/1 to Ex WW1/13 and Mark A (Colly three photographs). He was also cross-examined by the management.
In WE, workman also examined Sh. Sudhir Kumar, SSO, Regional Officer, Rajender Place Delhi, as WW2. He produced the summoned record i.e. ESIC record pertaining to management. He was also cross-examined by the management. The workman closed his evidence on 07.12.2016.
Thereafter, opportunity was given to the management to lead its evidence. Management examined Sh. Harsimran Bindra, Partner of the management as MW1. He relied upon document Ex MW1/1 (Colly) i.e. photocopy of attendance register of April 2012 to march 2014 (58 pages). The MW1 did not appear for his cross-examination, accordingly, ME was closed by the court vide order dated 02.09.2022. Hence, evidence of MW1 can not be looked into evidence.
6. I have heard the arguments addressed on behalf of the parties and perused the record.
7. My issue-wise findings are as follows:-
Issue No.1 Whether any relationship of employer and employee ever existed between the claimant and the management and Issue No. 2 If issue no. 1 is decided in favour of the claimant, whether the management ever illegally or unjustifiably terminated services of the claimant.
Both the above issues are inter-connected and are decided together. It is case of the claimant that he was working with the management at its Godwon since September 1992 as a Chowkidar; that his last drawn salary was Rs. 3100/- and that his services were terminate by the management LIR No. 1501/2016 Page 4 of 8 illegally and unjustifiably on 16.07.2012.
On the other hand, management has taken the plea that there is no employer and employee relationship between the claimant and the management; that the claimant never worked under control and supervision of the management and as such no question of terminate and non payment of wages arise.
The workman in support of his claim has filed on record the documents i.e. Ex WW1/1 copy of complaint filed before ALC dated 16.06.2002, Ex WW1/2 copy of complaint filed before ALC dated 17.12.2012, Ex WW1/3 copy of compliant filed before Director ESIC dated 28.05.2014, Ex WW1/4 copy of complaint filed before ALC dated 30.05.2014, Ex WW1/5 copy of complaint filed before ALC dated 02.06.2014, Ex WW1/6 copy of complaint dated 02.06.2014 filed before PF department, Ex WW1/7 copy of letter dated 25.06.2014 of PF department, Ex WW1/8 copy of letter dated 31.07.2014 of ESIC department, Ex WW1/9 copy of letter dated 27.08.2014 of ESIC department under the R.T.I Act 2005 with letter of Dy. Director dated 25.08.2014 along with physical verification report list dated 16.07.2014, Ex WW1/10 copy of complaint dated 21.07.2014 filed before ALC, Ex WW1/11 copy of demand notice dated 09.08.2014 sent to the management alongwith postal receipt, Mark A copy of three photographs of the workman, Ex WW1/12 copy of claim filed before conciliation officer, Ex WW1/13 copy of rejoinder filed before conciliation officer.
The onus to prove above issues was upon the workman and in support of his case, the workman has filed on record document Ex WW1/7 and Ex WW1/9. The document Ex WW1/7 is of no help to the workman as he has not filed on record his ESIC card. Perusal of document Ex WW1/9 (colly), i.e. physical verification report list, at page 4, in which the name of the claimant is mentioned at SL. No. 11, shows that there is an overwriting in column "date LIR No. 1501/2016 Page 5 of 8 of appointment" under the date 01.05.2014. The overwriting in the said column also does not bears initials of the author of the document.
In his cross-examination by the management, the workman stated that he know there was one co-worker namely Dharampal. He denied to the suggestion that he was called by said Dharampal for 2-3 days to assist him; he further denied that he was called only to show an employee of the management at the time of inspection; he stated that he was present at the time of inspection; he further stated that he was present at the time of visit of inspector on 16.07.2014; he further stated that he signed the report given by that inspector; he admitted his signatures at point X on document Ex WW1/9. He denied to the suggestion that he had disclosed to the inspector that he was working with the management for 2 ½ months; he further denied to the suggestion that he never worked with the management; he further denied to the suggestion that his services were never terminate; he further stated that he never lodged any complaint against the management in the year 2014 for not providing any facilities to him; he further denied to the suggestion that he did not work with the management for 240 days or that he is not entitled to any relief.
In support of his case, the other witness examined by the workman i.e. WW2, who produced the summoned record i.e. ESIC record pertaining to the management Ex WW2/1 (running into 19 pages), in his cross-examination, stated that in document Ex WW2/1 at page 10, there is cutting at point X. He further stated that he cannot say as to 2 ½ days have been converted to 2 ½ months or vice versa or that who has done this overwriting.
Document Ex WW1/9 and document Ex WW2/1 (which are same) does not inspire any confidence as there is overwriting in the column of "date of appointment" under dated 01.05.2014, (as observed above), which is the integral part of the case, for deciding the claim of the workman. Since, there LIR No. 1501/2016 Page 6 of 8 is no initials of its author at the place of overwriting, the date of joining of the workman with the management is itself in doubt and it cannot be said to be proved by the workman.
Further, if go by the defence taken by the management, that two and a half days have been converted into two and a half months, then also it cannot be said that the workman has completed continuous service of 240 days with the management in a preceding year from the date of his alleged illegal termination.
As per the claim of the workman, he joined the management in year 1992 however, he has not produced any other document on record which shows that he was employed with the management w.e.f 1992.
All the above mentioned documents, produced by the workman, do not constitute any proof of employment of the workman with the management. None of the above documents prove relationship of employee-employer between the parties. Self serving statement is not sufficient to prove the employee-employer relationship. No appointment letter has been filed on record by the workman.
Furthermore, the arguments of the workman that non-production of the documents by the management draws adverse inference against the management, does not hold any water as the management in its WS has categorically denied the relationship of employer and employee between the workman and the management and when there in no relationship of employer and employee how management can produce the documents as sought to be produced by the management. The workman in his claim has himself stated that the management in its reply filed before labour office has denied the relationship of employee and employer. The judgment relied upon by the workman are on different footing and does not go with the facts of the present case.
LIR No. 1501/2016 Page 7 of 8As such, the workman has miserably failed to prove relationship between the parties and since there in no relationship of employer-employee between the parties, no question of termination of services of the claimant illegally or unjustifiably arises. Accordingly, both the issues are decided against the workman and in favour of the management.
Issue No. 3 Relief:- In view of the findings of the court on Issue No. 1 and 2., it is held that the workman is not entitled to reliefs as claimed against the management and claim of workman stands rejected and award to that effect is hereby passed.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN
COURT ON 01.11.2022 (AJAY GOEL)
PRESIDING OFFICER:LABOUR COURT-06
ROUSE AVENUE DISTRICT COURT
NEW DELHI.
LIR No. 1501/2016 Page 8 of 8