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[Cites 13, Cited by 0]

Delhi District Court

Between The vs The on 21 November, 2013

                                            1/13

     IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER,
      LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI

ID NO. 11/13
Unique Case I.D. No. 02402C0015502013

BETWEEN THE WORKMAN
Sh.Pankaj s/o Sh.Jagdish Lal
r/o 831 A, Pocket 2, Janta Flat,
Paschim Puri, N.Delhi­63
AND THE MANAGEMENT OF
1     M/s Sparsh Apparels Retails (I) Pvt.Ltd.
      Head office C­41, Gate no.3, Industrial Area,
      Wazirpur, N.Delhi­52
                  &
       House no.206, Sarai Pipal Kalan
       Near Tyagi Hospital, Jhangirpur N.Delhi­33

2      M/s Oberoi Mart
       A­3/9, Opposite Petrol Pump Sector 17
       Rohni, N.Delhi­85



       Date of Institution                          :       16.01.2013
       Date on which award reserved                 :       18.11.2013
       Date of passing of award                     :       21.11.2013

                                     AWARD

1      Vide this award, I shall dispose off the claim of the workman as filed

by   him   directly   u/s   10­4(A)   of   the   Industrial   Disputes   Act     against   the

managements by stating that his services have been terminated illegally by

the   managements   on   27.8.2010   and   he   has   prayed     that   managements   be

directed to reinstate him  with full back wages alongwith other consequential



                                          Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.
                                            2/13

benefits.

2      Brief facts as stated by the workman in his statement of claim are that

he had  been  working  with    the management    since 17.8.09  at the post  of

'UDC' and his last drawn wages were 8000/­p.m  He had been  performing his

duties sincerely and honestly and had never afforded any chance of complaint

to the management but the management was not giving any statutory benefits

to the workman i.e appointment letter, ESI, leave book, bonus and PF etc.  It

is further submitted that the management no.2 had given the premises bearing

no.A 3/9, opposite petrol pump, Sector 17, Rohini, N.Delhi­85 on rent to the

management   no.1   M/s   Sparsh   Apparels   Retail   (I)   Pvt.Ltd.   and   this

management has now changed its office and name such as Blue orange and is

working at A­3/34, opposite Petrol Pump Sector­17, Rohini, N.Delhi­85 and

there are business relationship between the management no.1 & management

no.2. It is further submitted that the management no.2 has been made a party

to the present proceedings by way of abundant caution. It is further submitted

that when the workman demanded the legal benefits from the management

then in revenge and retaliation, one   Mr.Manoj Bhalla, Marketing Manager

terminated his services on 27.8.2010 illegally, arbitrary  and unjustifiably and

even the workers who were junior to the workman were in service and no

notice   or   notice   pay   was   paid   to   the   workman.   Thereafter,   the   workman

reported for duty but the management refused to take him back on duty and

ultimately he sent the demand notice to the management on 8.6.2011 but the

same was neither complied with nor the workman was reinstated . Thereafter

the   workman   filed   the   conciliation   proceedings   before   the   Conciliation



                                         Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.
                                              3/13

Officer,   Nimri   Colony   but   the   matter   could   not   be   reconciled   there   and

ultimately the workman has filed the present claim before this court with a

prayer  that the management be directed to reinstate him with full back wages

and other consequential reliefs. 

3      Both the managements were served and the management no.1 appeared

through   one   Sh.Sachin   on   3.7.2013   and   sought   time   to   file   the   Written

Statement but it did not file the written statement on 10.7.13, 17.7.13, 3.8.13

and   even   on   23.8.13   and   the   management   no.1   was   ultimately   proceeded

Ex.parte on 23.8.13.

4      Management   no.2   filed   its   written   statement   taking   Preliminary

Objections that there is no employer and employee relationship in between

the workman and the management no.2 and, therefore, there is no question of

terminating the services of the workman by it. It is further submitted that the

workman has admitted in the statement of claim that the management no.2

has given the premises to the management no.1 on rent and the management

no.2 has been made a party only by way of abundant caution and from this

fact,   it   is   clear   that   the   claimant   was   never   in   the   employment   of   the

answering respondent.  As far as merits are concerned, it is submitted that

the claimant has not specified that with which management he joined on 17.8.09 at the post of 'UDC' but it is reiterated that the claimant was never in the employment of the management no.2 and as such there is no question of providing statutory benefits by the management no.2 to the claimant. It is specifically denied that the claimant was working under the supervision of management no.2 or that the management no.1 and the management no.2 Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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have any business relation as alleged and it is further submitted that the claimant has made the management no.2 as a party only with malicious intention. As far as service of legal notice is concerned, the receipt of same is denied by the management no.2 and as far as conciliation proceedings are concerned, it is stated that the answering management filed its reply to the statement of claim before the appropriate authority. All other facts are denied word by word and the entire defence of the management no.2 is that there is no employer and employee relationship in between the parties and it is, therefore, prayed that the statement of claim be dismissed. 5 Rejoinder was filed by the workman in which contents of the written statement were denied and the facts of the statement of claim were reiterated and reaffirmed. After completion of the pleadings, following issues were framed on 23.8.13:­ 1 Whether there is any employer and employee relationship in between the workman and the management no.2? OPW 2 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW 3 Relief 6 After framing up of the issues, the workman was directed to lead his evidence and accordingly, the workman examined himself as WW­1 and closed his evidence. Management has examined Sh.Sarvjeet Singh as M.W­1 and closed its M.E. 7 I have heard the arguments and perused the record. My issue­wise findings are as under:

ISSUE NO.1

8 Onus to prove the issue no.1 was upon the workman and he had to Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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prove that there is any employer and employee relationship in between the workman and the management no2. The workman has deposed in terms of the statement of claim and in cross examination of the workman, he deposed that he was working with the management no.2 since 17.8.09 and he admitted as correct that all the documents which he has filed show that he had been working with the management no.1 and he volunteered that Ex.WW 1/ 5 bears the name of the management no.2 also . He deposed that the management no.2 had given the said space on rent to the management no.1. He knew Sh.Manoj Bhalla but he denied that Sh.Manoj Bhalla was related only with the management no.1. He deposed that he was related to both the managements. He further deposed Sh.Manoj Bhalla was looking after the shop of the management no.2 and he was Marketing Incharge of the management no.1. He deposed that his salary was being given by the management no.1. He denied that he was supervised and controlled by the management no.1 only but again admitted that the management no.1 shifted to some other place & after leaving the space of management no.2 it was working only in its own name . He further deposed that he can not say as to whether his services were terminated by the management no.1 or whether he was terminated by the management no.2 . He denied that he has never worked with the management no.2.

9 Management no.1 is running Ex.parte and the management no.2 has examined Sh.Sarvjeet Singh , proprietor of the management no.2 as M.W­1 and he deposed in terms of written statement that he has no relation with the workman and he had only given the premises on rent to the management Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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no.1.

In cross examination, he deposed that he has not filed any document to prove that he was the proprietor of the management no.2 .Management no.2 is registered under Shop & Establishment Act. He knew the management no.1 as his premises were given on rent vide agreement which is Ex.M.W 1/1. He denied that the management no.1 & management no.2 had business and functional integrality but admitted that Ex.WW 1/5 bears the name of the management no.2. He further deposed that no worker was working with the management after renting out the premises to the management no.1. Management no.2 had two workers prior to giving the premises on rent and it was not maintaining the attendance register of these two workers . He denied that he was controlling the affairs of the workman during this period or he terminated the services of the workman when he demanded the legal facilities. This is the entire evidence on this issue. 10 Onus to prove the fact that the workman was working with the management no.2, was upon the workman and apart from Ex.WW 1/5 there is no other document with the workman to prove this fact. Ex.WW 1/5 is a cash memo upon which name of both the managements is written. Here is the workman who is not aware about the fact as to which management appointed him and which management has terminated his services. Court is of the opinion that if the workman claims that his services have been terminated then he has to be specific as to who has terminated his services. Presumption otherwise can be that only, the employer i.e. the appointing authority can terminate the services of the workman. There is not even a single averment in Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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the entire statement of claim or affidavit that the management no.2 had terminated the services of the workman. Contention of the workman is that the management no.1 & management no.2 both have business and functional integrality. Apart from cash memo, there is not even a single evidence to show that there is any commercial or functional relationship in between the management no.1 & management no.2. There is not even a single document on record as to who was the owner of the management no.2 & management no.1, whether there was any partnership in between them or whether there was having some exchange of commission or whether there was any common bank account of both the managements. Further, in the statement of claim, the workman has stated that his services were terminated by Sh.Manoj Bhalla , Marketing Manager and when he was cross examined on this aspect, he deposed that he knew Sh.Manoj Bhalla and all the documents which have been filed except Ex.WW 1/5 show that he had been working with the management no.1 and his salary was given by the management no.1. He further deposed that Sh.Manoj Bhalla was looking after the shop of management no.2 but he does not have any documentary evidence to prove that Sh.Manoj Bhalla was one of the official of management no.2 and this fact gets further support that when the workman admitted as correct that after the management no.1 shifted to some other place, the management no.1 was working in its own name. There is no documentary evidence on court record from Income Tax office or from the Sales Tax Office from which it can be inferred that there was any business or functional integrality between the management no.1 & management no.2 and Ex.WW 1/5 is not a proper Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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documentary evidence before the court to prove that the management no.1 and management no.2 were being controlled by same group of management. 11 The workman was appointed on 17.8.09. The rent agreement in between the management no.1 & management no.2 is dt.2.6.10 and there is no averment in the statement of claim that there was any business integrality in between the management no.2 & management no.1, prior to the date of agreement or at the time of his joining the management no.1 on 17.8.09. It is, therefore, clear that the workman was appointed by the management no.1 and was terminated by the management no.1 only.

Law otherwise is well settled in judgment titled as Automobile Association Upper India vs P.O. Labour Court II and Anr. 130 (2006) DLT 160, Delhi High Court in which it was inter­alia held that engagement and appointment in service can be established either by direct evidence like existence and production of appointment letter or written agreement, or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave record, deposit of PF contribution, ESI, etc. or even by examination of co­workers and this onus can be discharged by evidence of the co­worker who may depose before the Court that the workman was working with the management.

To prove the employer and employee relationship, law is well settled. In the judgment titled 'Range Forest Officer vs S.T.Hadimani, AIR 2002, Supreme Court 1147' in which it was interalia held that:

Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.
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mere filing of a self serving affidavit by the workman by itself is not sufficient evidence to prove that he had worked with the management or that he had worked for 240 days in the preceding year of his alleged termination. It was further held in the said Judgment that filing an affidavit is only the reproduction of his own statement in his favour and the same cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had ever worked with the management or that he had ever worked with the management for 240 days and the burden cannot be shifted on management to show that there was justification in termination of service without first determining on basis of cogent evidence that the workman had ever worked with the management.

Judgment titled UCO Bank Vs. Presiding Officer & Anr. 1999 V AD (Delhi) 514 (Delhi High Court) also speaks that a fact has to be proved by a person who asserts it. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that:

"principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on this aspect and the Hon'ble Delhi High Court further held in this judgment that General Principle, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act was that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or non­existence of a fact contended to by a party. It was further held in this judgment that the burden of providing a fact rests on the party who Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.
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substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof".

viii It was also held by Hon'ble Allahabad High Court in judgment titled Canara Bank Vs. Union of India & Ors. 1998 Lab. I.C. 2923 (Allahabad High Court). The Hon'ble Allahabad High Court held in para 11 of this judgment to the effect that "section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right and liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Section 101, 103 and 106 of the Evidence Act pertaining to burden of proof in such like cases".

Keeping in view all the facts and circumstances of the case and the law cited above, the workman has failed to prove that there is any relationship in between the workman and the management no.2. The issue no.1 is decided accordingly.

ISSUE NO.2 12 Onus to prove this issue was upon the workman and he had to prove that his services have been terminated illegally and unjustifiably by the management. While disposing off the issue no.1, it has already been held hereinabove that there is no relationship in between the workman and the management no.2. As far as relationship in between the workman and the management no.1 is concerned, it is categorically stated by the workman that he had been working with the management no.1 and his services have been Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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terminated by Sh.Manoj Bhalla who is associated with management no.1. The workman has relied upon the documents i.e. copy of demand notice as Ex.WW 1/1, registered ADs as Ex.WW 1/ 2 and Ex.WW 1/3, AD card as Ex.WW 1/ 4, cash memo as Ex.WW 1/5, stock taking reports as Ex.WW 1/6 and Ex.WW 1/7 and photocopy of day book register as Mark A. Management no.1 has not appeared despite earlier Sh.Sachin who had appeared on 3.7.13 and filed memo of appearance and even had obtained copy of statement of claim from the record on 3.7.13. Management no.1 has not come forward to controvert this fact.

13 Keeping in view the WS of the management no.2, his cross examination and the testimony of workman, he has been able to prove that he had been working with the management no.1. Management no.1 is a Ex.parte and has not come forward to controvert this fact. Therefore, the issue no.2 is decided by holding that the workman has been able to prove that his services have been terminated by the management no.1 and since it has already been held while disposing off the issue no.1 that there is no relationship of employer and employee in between the workman and the management no.2, it can not be said that his services have been terminated by the management no.2 . The issue no.2 is answered accordingly by holding that the services of the workman have been terminated illegally by the management no.1.

RELIEF 14 Keeping in view findings of this court on issue no. 2, the workman is entitled to relief against the management no.1. However, the workman has Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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claimed reinstatement and the court is of the opinion that since the management no.1 has not been appearing and the workman has otherwise averred that the management no.1 has subsequently changed its name, the court is of the opinion that reinstatement of the workman in service would not be in the interest of both the parties and a lump sum compensation instead of reinstatement would be a better option.

In coming to the above conclusion, the court also find support from the judgment of Hon'ble Delhi High Court given in the case of Rameshwar Dayal Vs. Presiding Officer Labour Court No. VI, Delhi & Anr. 2007 (3) LLJ 729 (DHC) wherein the Hon'ble Delhi High Court came to the conclusion that "a lump­sum amount of Rs.50000/­ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief".

In Kishan Lal & Ors. Vs. Govt. Of NCT of Delhi & Ors., 2007 VI AD (Delhi) 13, the Hon'ble Delhi High Court held mainly to the effect that "in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lump­sum compensation of Rs.40000/­ towards full and final settlement of all claims of each of such workmen".

In Indian Railway Construction Company Ltd. Vs. Ajay Kumar, AIR 2003 Supreme Court 1843, the Hon'ble Supreme Court of India awarded one time lump­sum compensation to the workman in this case towards full and final settlement of all his claims.

15 Now, coming to the quantum of compensation. The workman has Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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claimed that his services have been terminated on 27.8.10 whereas the claim has been received in this court on 16.1.13. There is no explanation as to why such delay has been caused . Even otherwise, the workman sent the demand notice after 8 months of the alleged termination. There is definitely delay on the part of the workman in pursuing his own matter. Therefore, keeping in view all these facts and circumstances and also keeping in view the law points cited hereinabove, a lump sum compensation is granted to the workman to the extent of Rs.38,000/­ in lieu of his reinstatement, back wages and all other consequential benefits. The management no.1 is directed to pay the lump sum compensation to the extent of Rs.38,000/­ to the workman within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum from the date of award till realization. An award to the above effect is passed today separately.

As far as claim of the workman against the management no.2 is concerned, the same is dismissed.

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. 

ANNOUNCED IN OPEN                                                    (S.S.MALHOTRA)
COURT ON 21  NOVEMBER,2013                     PRESIDING OFFICER
                    st


                                LABOUR COURT­IX/KKD COURTS:DELHI




                                           Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.
                                          14/13

       ID no.11/13


21.11.2013
Present:      Ld.AR for the parties

Vide separate award, a lump sum compensation to the extent of Rs.38,000/­ is awarded to the workman. Accordingly, the management no.1 is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization. As far as claim of the workman against the management no.2 is concerned, the same is dismissed.

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.

(S.S.MALHOTRA) POLC­IX/21.11.2013 Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.

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Pankaj vs M/s Sparsh Apparels Retails Pvt.ltd.