Delhi District Court
Sh. Ajay Pal vs M/S. K2 International on 7 August, 2010
DID NO. 612/08
In the matter of:
Sh. Ajay Pal
Through:
All India Mazdoor Sangh near
B-86, Okhla Phase-2, New Delhi-20.
..........Workman
VERSUS:
M/s. K2 International, Pocket-N, A-225,
Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along
with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for
adjudication of an industrial dispute between the management of M/s K2
International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in
C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20
by formulating the following issue:
"Whether the services of the workmen whose
names appear in Annexure 'A' have been
terminated illegally and/or unjustifiably by the
management, and if so, to what reliefs are they
entitled and what directions are necessary in
this respect."
The names of following workmen were mentioned in Annexure
'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj,
(14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan,
(19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23)
Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II,
(28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan,
(33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen
and the concerned union for filing of statement of claim by the aforesaid
workmen. The following workmen filed their separate statement of claims (1)
Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I,
(5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar -I, (9) Jagdish, (10)
Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15)
Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II,
(20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25)
Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30)
Munni Lal, stating that they were working with the management for a long
time as 'delivery men' and their last drawn salary was Rs.2460/- per month.
The management was not providing legal benefits such as annual leaves,
bonus, appointment letter and service card etc. The management did not
maintain attendance register and salary register. The workmen claimed their
legal benefits so the management revengefully terminated their services on
23.05.1997 withholding their earned wages for the month of January 1997 to
May 1997. Sh. K. K. Mehra, the first owner of the management company had
sold the management company in December 1996 to Sh. Rajan Duggal. The
workmen had complained against their illegal termination to labour
pay earned wages of the workmen. The workmen sent demand notice to the
management, but the management refused to take the same. The conciliation
proceedings also failed as management did not appear before the conciliation
officer. A request is made by the workmen that directions be given to the
management to reinstate their services with continuity of service and full back
wages.
3. A notice of the statement of claims filed by the aforesaid
workmen was sent to the management. The management filed its separate
written statement against all the individual claims of the aforesaid workmen
stating that the claims of the workmen are not maintainable as there is no
relationship of master and servant between the management and the
workmen. The reference is bad. The workmen never worked with the
management as employee and refuted the facts mentioned by the workmen in
their respective statement of claims. A request is made by the management to
dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the
management.
5. On 13.10.1999 on the basis of pleadings of the parties, following
issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of
employee and employer between the
parties?
(2)Whether services of the workmen were
terminated illegally and/or unjustifiably?
(3)Relief.
The workman Sh. Ajay Pal led workman evidence by filing his
affidavit as Ex. WW-5/A and relied upon documents Ex.WW-1/1 to Ex.WW-
1/11 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead
management evidence. The management examined Sh. Naresh Kumar as
MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex.
MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both
the parties have also filed their written submissions to address final
arguments.
A.R for the workman has submitted that the workman has
already completed 240 days of service and he is covered within the definition
of workman provided under Industrial Disputes Act, 1947. He is also a
workman as per LPG Gas Cylinder Act and covered under the Sales Promotion
Employees (Condition of Service) Act, 1976. No enquiry was conducted by
the management before termination. Nature of work should be considered
and not the salary for determining the status of workman. Taking a job for
mere subsistence cannot be treated as gainful employment in order to deprive
a workman from relief of reinstatement and back wages. He has relied upon
the following case laws: -
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644,
(2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra
Kumar S/o Mangilal Tanwarao 2004, LLR 405,
(4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no
relationship of employee and employer between the workman and
management. The workman had worked in the capacity of independent
contractor on commission basis for the purpose of sale and delivery of gas
cylinders on different rates, which were fixed time to time. The workman has
not proved the report of the labour inspector, complaint to the police officers,
godown register, copies of FIR and even not confronted the management with
aforesaid documents. The workman used to work as Sales promotion
employee hence, not covered in the definition of workman as per case law
titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995,
Pg.303.
9. I have considered the submission of both the parties and perused
the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of
employee and employer between the
parties"?
As per case law Workmen of Nilgiri Coop-Marketing Society
Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR
351, the burden of proof for existence of relationship of employer and
employee lies upon the person who sets up a plea of its existence.
II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue
by producing an appointment letter, a written agreement or by circumstantial
evidence or incidental and ancillary records which could be in the nature of
attendance register, salary registers, leave record, deposit of 'Provident fund
contribution' and employees 'State insurance contributions' etc. The same can be
produced and proved by the workman or he could call upon and caused the
same to be produced and proved by calling of witnesses who are required to
produce and prove these records. The workman can even make an appropriate
application calling upon the management to produce such records in respect of
his employment. In these circumstances, if the management then fails to
produce such records, an adverse inference is liable to be drawn against the
management and in favour of the workman.
The workman Ajay Pal has not filed any appointment letter, any
written agreement or shown any circumstantial evidence or incidental or
ancillary records such as deposit of Provident fund contribution and Employees
State insurance contributions etc to show that he was the employee of the
management. The workman did not move any application to ask the
management to produce the records of his employment. Only affidavit of the
workman stating the facts mentioned in his statement of claim is on record,
which can't be considered as sufficient proof in view of the case law Manager,
RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India,
wherein it has been held that the pleadings of parties are no substitute for the
proof and when a particular plea in controverted by a party, the other party has
to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that
the workman is not it's employee, therefore it was the duty of the workman to
show from some evidence that he was the employee of the management.
as employee.
A perusal of the record shows that the workman was working on a
simple contract of hire and fire on commission and day today basis. The
management was not having any control over the workman as to how the work
is to be performed. The workman was not bound to come to the office of the
management or go from the office of the management at any particular time.
Even he was at liberty to choose and not come to the office of the management
at all. There was no fixed number of cylinders which were to be delivered by
workman every day. This shows that all choice was of the workman, if he
chooses he would have delivered the cylinders and earned money at fixed
current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman
that the workman has already completed 240 days of service and he is covered
within the definition of workman provided under Industrial Disputes Act, 1947
and he is also a workman as per LPG Gas Cylinder Act and covered under the
Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and
can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing
Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004
LLR 351, it was held that merely because some persons had been more or less
continuously working in a particular premises, would not be construed that the
relationship of employer-employee has come into existence since other
circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence
that he was the employee of the management, getting fixed salary from the
management and was under control of the management in day to day working
with the management, the management could have taken any action against him
if he would have not delivered any particular number of cylinders any day, or
commission for delivery of any number of cylinders. Therefore, it seems that
the workman has failed to show from the evidence that he was the employee
of the management and hence the issue no.1 is decided against the workman
and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were
terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is
apparent from the above discussion that the workman has failed to show from
the record or by leading any evidence that he was employee of the
management; therefore, the issue no.2 can't be decided in favor of the
workman. Hence the same is also decided against the workman and in favor
of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record
that workman is not entitled to any relief and hence no relief award is passed
against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its
publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR)
POLC-V, KKD/DELHI
DID NO. 612/08
In the matter of:
Sh. Bhule Ram
Through:
All India Mazdoor Sangh near
B-86, Okhla Phase-2, New Delhi-20.
..........Workman
VERSUS:
M/s. K2 International, Pocket-N, A-225,
Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1.A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi - 44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi - 20 by formulating the following issue :
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:-
(1)Whether there was relationship of employee and employer between the parties? (2)Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Bhule Ram led workman evidence by filing his affidavit as Ex. WW-7/A and relied upon documents Ex. WW-1/1 to Ex. WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex.MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows:
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence.
II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Bhule Ram has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. men per day. He admitted that he was doing the job of delivery of cylinders as the booking.
The workman has stated in his cross-examination that he was working as godown keeper and he was overall incharge of the godown and maintaining all the accounts of the gas cylinders. However, the workman not summoned any record from the management to show that he was employed with the management and on the instructions of the management he was maintaining the records of booking of cylinders or delivery of the cylinders. Moreover, in the statement of claim workman has not stated that he was working as godown keeper and overall incharge of the godown and maintaining all the accounts of the gas cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management. The management could have taken any action against him if he would have not maintained the records of booking or delivery of is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no.2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
(CHANDRA SHEKHAR) POLC-V, KKD/07.08.2010 DID NO. 612/08 In the matter of:
Sh. Haroon Rashid Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:-
(1)Whether there was relationship of employee and employer between the parties?
(2) Whether services of the workmen
were terminated illegally and/or
unjustifiably?
(3)Relief.
The workman Sh. Haroon Rashid led workman evidence by filing his affidavit as Ex. WW-8/A and relied upon documents Ex.WW-1/1 to Ex.
WW-1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence. P.O.Labour Court-II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Haroon Rashid has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc. to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no. 2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Jagbir Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2)Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Jagbir led workman evidence by filing his affidavit as Ex. WW-1/A and relied upon documents Ex.WW-1/1 to Ex.WW- 1/11 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R. for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws: -
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No. 1:
"Whether there was relationship of
employee and employer between the
parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence.
P.O.Labour Court-II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Jagbir has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc. to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no.2. can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR)
POLC-V, KKD/DELHI
IN THE COURT OF SHRI CHANDRA SHEKHAR: POLC-V:
KARKARDOOMA COURT: DELHI
DID NO. 612/08
In the matter of:
Sh. Mahender Singh
Through:
All India Mazdoor Sangh near
B-86, Okhla Phase-2, New Delhi-20.
..........Workman
VERSUS:
M/s. K2 International, Pocket-N, A-225,
Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue :
the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
(1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Ram deen, (4) Hakim Singh, (5) Mahinder Singh, (6) Gotri, (7) Avdesh Kumar, (8) Ramesh Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour department, but the management did not reinstate their services even on the pursuance of Sh. Gulati, the Labour Inspector and management also refused to pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
(1)Whether there was relationship of employee and employer between the parties?
(2)Whether services of the workmen were terminated illegally and/or unjustifiably?
(3)Relief.
6. The opportunities were given to the workman Sh. Mahender Singh to lead workman evidence.
The workman Sh. Mahender Singh led workman evidence by filing his affidavit as Ex. WW-4/A and relied upon documents Ex. WW-1/1 to Ex. WW-1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for the following case law:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (3)Management of Tata Iron & Steel Co. Limited Vs. The Presiding officer, Industrial Tribunal, Ranchi & Ors., 2000 LLR 270 (Pat. HC), (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence.
Therefore, the onus to prove this issue in this was on the workman. As per case law Automobile Association of Upper India Vs. P.O.Labour Court- II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Mahender Singh has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management.
The workman admitted in his cross examination that he has no document in his possession showing that he was working with the management as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no. 2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Mahipal Singh Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue :
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar -II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2) Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Mahipal Singh led workman evidence by filing his affidavit as Ex. WW-16/A and relied upon documents Ex. WW-1/1 to Ex. WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case law: -
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. I have considered the submission of both the parties and perused the record. My findings on the issues are as follows:
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence. II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Mahipal has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, as it has been held in this case that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. men to the customers of the management. He has further admitted that the payment was made as per the number of cylinders delivered by the delivery man. The account was settled in a month. All the delivery men used to take cylinders from the godown in the morning hours and deliver the same to the consumers and thereafter take the empty cylinders and the payment from the consumers and deposit the same with the management. He admitted that there was no fixed monthly payment made by the management to him or to any other delivery man and emolument used to vary as per the number of cylinders delivered by the individual delivery man.
A perusal of the cross-examination of the workman shows that he has virtually admitted the case of the management. Therefore, it seems that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, this issue can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Mahavir Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue :
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2) Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Mahavir led workman evidence by filing his affidavit as Ex. WW-11/A and relied upon documents Ex.WW-1/1 to Ex.WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex.MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence. II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Mahavir has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. cylinders delivered by him to the consumers of the management.
A perusal of the cross-examination of the workman shows that he has virtually admitted the case of the management. Therefore, it seems that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no.2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI KARKARDOOMA COURT: DELHI DID NO. 612/08 In the matter of:
Sh. Pappu Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi - 44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi - 20 by formulating the following issue :
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are nece hssary in this respect."
(1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Ram deen, (4) Hakim Singh, (5) Mahinder Singh, (6) Gotri, (7) Avdesh Kumar, (8) Ramesh Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh- II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had department, but the management did not reinstate their services even on the pursuance of Sh. Gulati, the Labour Inspector and management also refused to pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
6. The opportunities were given to the workman Sh. Pappu to lead workman evidence.
The workman Sh. Pappu led workman evidence by filing his affidavit as Ex. WW-10/A and relied upon documents Ex.WW-1/1 to Ex.WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex.MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (3)Management of Tata Iron & Steel Co. Limited Vs. The Presiding officer, Industrial Tribunal, Ranchi & Ors., 2000 LLR 270 (Pat. HC), (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of
employee and employer between the
parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR Therefore, the onus to prove this issue in this was on the workman.
As per case law Automobile Association of Upper India Vs. P.O.Labour Court- II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Pappu has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention. show from some evidence that he was the employee of the management.
The workman admitted in his cross examination that he has no document in his possession showing that he was working with the management as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no.2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Rajkumar-II Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2) Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Rajkumar-II led workman evidence by filing his affidavit as Ex. WW-9/A and relied upon documents Ex. WW-1/1 to Ex. WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of
employee and employer between the
parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence.
Court-II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Rajkumar-II has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, this issue can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI KARKARDOOMA COURT: DELHI DID NO. 612/08 In the matter of:
Sh. Rajkumar-I S/o Sh. Achbar Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
(1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Ram deen, (4) Hakim Singh, (5) Mahinder Singh, (6) Gotri, (7) Avdesh Kumar, (8) Ramesh Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh- II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar -II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had department, but the management did not reinstate their services even on the pursuance of Sh. Gulati, the Labour Inspector and management also refused to pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
6. The opportunities were given to the workman Sh.Rajkumar-I to lead workman evidence.
The workman Sh. Rajkumar-I led workman evidence by filing his affidavit as Ex. WW-15/A and relied upon documents Ex. WW-1/1 to Ex. WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (3)Management of Tata Iron & Steel Co. Limited Vs. The Presiding officer, Industrial Tribunal, Ranchi & Ors., 2000 LLR 270 (Pat. HC), (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR Therefore, the onus to prove this issue in this was on the workman. As per case law Automobile Association of Upper India Vs. P.O.Labour Court- II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Rajkumar-I has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention. show from some evidence that he was the employee of the management.
The workman admitted in his cross examination that Ex. WW1/12 is the register containing the details of the gas cylinders delivered by the delivery men to the customers of the management on commission basis. The Ex. WW15/M1 collectively are the details of the cylinders issued to the delivery men. He has further admitted that the payment was made as per the number of cylinders delivered by the delivery man. The account was settled in a month. All the delivery men used to take cylinders from the godown in the morning hours and deliver the same to the consumers and thereafter take the empty cylinders and the payment from the consumers and deposit the same with the management. He admitted that there was no fixed monthly payment made by the management to him or to any other delivery man and emolument used to vary as per the number of cylinders delivered by the individual delivery man. He admitted that the delivery men left the job because the commission was Rs.2/- per cylinder and was not was not sufficient for survival.
A perusal of the cross-examination of the workman shows that he has virtually admitted the case of the management. Therefore, it seems that the workman was working on simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders. is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Ramesh-I Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar -I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar -II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2)Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Ramesh-I led workman evidence by filing his affidavit as Ex. WW-14/A and relied upon documents Ex. WW-1/1 to Ex. WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No. 1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence. II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Ramesh-I has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, this issue can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI KARKARDOOMA COURT: DELHI DID NO. 612/08 In the matter of:
Sh. Sarvan Kumar Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
(1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Ram deen, (4) Hakim Singh, (5) Mahinder Singh, (6) Gotri, (7) Avdesh Kumar, (8) Ramesh Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh- II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had department, but the management did not reinstate their services even on the pursuance of Sh. Gulati, the Labour Inspector and management also refused to pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
6. The opportunities were given to the workman Sh. Sarvan kumar to lead workman evidence.
The workman Sh. Sarvan Kumar led workman evidence by filing his affidavit as Ex. WW-6/A and relied upon documents Ex. WW-1/1 to Ex. WW-1/11 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex.MW-1/A and relied upon documents Ex.MW- 1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R. for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (3)Management of Tata Iron & Steel Co. Limited Vs. The Presiding officer, Industrial Tribunal, Ranchi & Ors., 2000 LLR 270 (Pat. HC), (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR Therefore, the onus to prove this issue in this was on the workman. As per case law Automobile Association of Upper India Vs. P.O.Labour Court- II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Sarvan Kumar has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention. show from some evidence that he was the employee of the management.
The workman admitted in his cross examination that he has no document in his possession showing that he was working with the management as employee.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no. 2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief".
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
DID NO. 612/08In the matter of:
Sh. Shiv Bahadur Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue:
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January, 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2) Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Shiv Bahadur led workman evidence by filing his affidavit as Ex. WW-3/A and relied upon documents Ex. WW-1/1 to Ex. WW-1/11 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of employee and employer between the parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence. II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Shiv Bahadur has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. the delivery men to the customers of the management. He has further admitted that the payment was made as per the number of cylinders delivered by the delivery man. The account was settled in a month. All the delivery men used to take cylinders from the godown in the morning hours and deliver the same to the consumers and thereafter take the empty cylinders and the payment from the consumers and deposit the same with the management. He admitted that there was no fixed monthly payment made by the management to him or to any other delivery man and emolument used to vary as per the number of cylinders delivered by the individual delivery man.
A perusal of the cross-examination of the workman shows that he has virtually admitted the case of the management. Therefore, it seems that the workman was working on simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him if he would have not delivered any particular number of cylinders on any day, or force his attendance in the office of the management. On the other hand, it seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no.2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI DID NO. 612/08 In the matter of:
Sh. Sunil Through:
All India Mazdoor Sangh near B-86, Okhla Phase-2, New Delhi-20.
..........Workman VERSUS:
M/s. K2 International, Pocket-N, A-225, Sarita Vihar, New Delhi-44.
.........Management
DATE OF INSTITUTION : 03.04.1998
DATE OF AWARD : 07.08.2010
AWARD
1. A reference no. F.24(894)/98-lab.8473-77 Dt : 23.03.1998 along with Annexure 'A' was sent by Secretary (Labour), Govt. of NCT of Delhi for adjudication of an industrial dispute between the management of M/s K2 International, Pkt-N, A-255, Sarita Vihar, New Delhi-44 and its workmen in C/o All India Majdoor Sangh, bearing No B-86, Okhla Phase-II, New Delhi-20 by formulating the following issue :
"Whether the services of the workmen whose names appear in Annexure 'A' have been terminated illegally and/or unjustifiably by the management, and if so, to what reliefs are they entitled and what directions are necessary in this respect."
The names of following workmen were mentioned in Annexure 'A':-
Singh-I (9) Inderjeet, (10) Ashok, (11) Rambir, (12) Ombir, (13) Raghuraj, (14) Raj Kumar-I, (15) Mahesh, (16) Jagdish, (17) Mahipal, (18) Sarvan, (19) Brijesh, (20) Virender Singh, (21) Suraj Singh, (22) Ram Verma, (23) Haroon Rashid, (24) Kashi Nath, (25) Sunil, (26) Pappu, (27) Raj Kumar-II, (28) Shibu, (29) Dharmveer) (30) Ram Rattan, (31) Mahavir, (32) Madan, (33) Lallu, (34) Bishan, (35) Ajay Pal, (36) Ravi, (37) Vaneet, (38) Ramesh-
II, (39) Jagbir, (40) Jai Prakash, (41) Munni Lal, (42) Pratap.
2. After receiving the reference, notice was sent to all the workmen and the concerned union for filing of statement of claim by the aforesaid workmen. The following workmen filed their separate statement of claims (1) Shiv Bahadur Singh, (2) Bhule Ram, (3) Mahinder Singh, (4) Ramesh Singh-I, (5) Mahavir, (6) Ombir, (7) Raghuraj, (8) Raj Kumar-I, (9) Jagdish, (10) Mahipal, (11) Sarvan, (12) Brijesh, (13) Suraj Singh, (14) Ram Verma, (15) Haroon Rashid, (16) Kashi Nath, (17) Sunil, (18) Pappu, (19) Raj Kumar-II, (20) Shibu, (21) Ram Rattan, (22) Madan, (23) Lallu, (24) Bishan, (25) Ajay Pal, (26) Ravi, (27) Ramesh-II, (28) Jagbir, (29) Jai Prakash and (30) Munni Lal, stating that they were working with the management for a long time as 'delivery men' and their last drawn salary was Rs.2460/- per month. The management was not providing legal benefits such as annual leaves, bonus, appointment letter and service card etc. The management did not maintain attendance register and salary register. The workmen claimed their legal benefits so the management revengefully terminated their services on 23.05.1997 withholding their earned wages for the month of January 1997 to May 1997. Sh. K. K. Mehra, the first owner of the management company had sold the management company in December 1996 to Sh. Rajan Duggal. The workmen had complained against their illegal termination to labour pay earned wages of the workmen. The workmen sent demand notice to the management, but the management refused to take the same. The conciliation proceedings also failed as management did not appear before the conciliation officer. A request is made by the workmen that directions be given to the management to reinstate their services with continuity of service and full back wages.
3. A notice of the statement of claims filed by the aforesaid workmen was sent to the management. The management filed its separate written statement against all the individual claims of the aforesaid workmen stating that the claims of the workmen are not maintainable as there is no relationship of master and servant between the management and the workmen. The reference is bad. The workmen never worked with the management as employee and refuted the facts mentioned by the workmen in their respective statement of claims. A request is made by the management to dismiss the claims of the workmen.
4. The workmen did not file rejoinder against the W.S filed by the management.
5. On 13.10.1999 on the basis of pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1)Whether there was relationship of employee and employer between the parties?
(2)Whether services of the workmen were terminated illegally and/or unjustifiably? (3)Relief.
The workman Sh. Sunil led workman evidence by filing his affidavit as Ex.WW-12/A and relied upon documents Ex.WW-1/1 to Ex.WW- 1/13 and faced cross-examination conducted by the management.
7. The opportunities were also given to the management to lead management evidence. The management examined Sh. Naresh Kumar as MW-1, who filed his affidavit Ex. MW-1/A and relied upon documents Ex. MW-1/1 & MW-1/2 and faced cross-examination conducted by the workman.
8. I have heard submissions of Ld. A.R's of both the parties. Both the parties have also filed their written submissions to address final arguments.
A.R for the workman has submitted that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947. He is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976. No enquiry was conducted by the management before termination. Nature of work should be considered and not the salary for determining the status of workman. Taking a job for mere subsistence cannot be treated as gainful employment in order to deprive a workman from relief of reinstatement and back wages. He has relied upon the following case laws:
(1)Birdichand Vs. First Civil Judge, AIR 1961 SC 644, (2)Sachiv Krishi Upaj Mandi Samiti, Sanawad Vs. Mahendra Kumar S/o Mangilal Tanwarao 2004, LLR 405, (4)Shankarbhai Nathalal Prajapati Vs. Maize Products, LLR 192:
2003 (96) FLR 829 (Gujarat HC).
Ld. A.R for the management has submitted that there was no relationship of employee and employer between the workman and management. The workman had worked in the capacity of independent contractor on commission basis for the purpose of sale and delivery of gas cylinders on different rates, which were fixed time to time. The workman has not proved the report of the labour inspector, complaint to the police officers, godown register, copies of FIR and even not confronted the management with aforesaid documents. The workman used to work as Sales promotion employee hence, not covered in the definition of workman as per case law titled as "H. R. Adyanthaya etc. Vs. Sandoz (India) Ltd. Etc" ILLJ, S.C 1995, Pg.303.
9. FINDINGS ON ISSUES:
I have considered the submission of both the parties and perused the record. My findings on the issues are as follows: -
(A) FINDINGS ON ISSUE No .1:
"Whether there was relationship of
employee and employer between the
parties?"
As per case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, the burden of proof for existence of relationship of employer and employee lies upon the person who sets up a plea of its existence.
II & Anr. 2006, Delhi High Court, LLR 851, the workman can prove this issue by producing an appointment letter, a written agreement or by circumstantial evidence or incidental and ancillary records which could be in the nature of attendance register, salary registers, leave record, deposit of 'Provident fund contribution' and employees 'State insurance contributions' etc. The same can be produced and proved by the workman or he could call upon and caused the same to be produced and proved by calling of witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to produce such records in respect of his employment. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
The workman Sunil has not filed any appointment letter, any written agreement or shown any circumstantial evidence or incidental or ancillary records such as deposit of Provident fund contribution and Employees State insurance contributions etc to show that he was the employee of the management. The workman did not move any application to ask the management to produce the records of his employment. Only affidavit of the workman stating the facts mentioned in his statement of claim is on record, which can't be considered as sufficient proof in view of the case law Manager, RBI Banglore Vs. Mani and others, 2005 LLR 737, Supreme Court of India, wherein it has been held that the pleadings of parties are no substitute for the proof and when a particular plea in controverted by a party, the other party has to produce the evidence in support of its contention.
The management in the present case has taken a specific plea that the workman is not it's employee, therefore it was the duty of the workman to show from some evidence that he was the employee of the management. as employee and that Ex. WW1/12 was the register having details of the cylinders delivered by the delivery man.
A perusal of the record shows that the workman was working on a simple contract of hire and fire on commission and day today basis. The management was not having any control over the workman as to how the work is to be performed. The workman was not bound to come to the office of the management or go from the office of the management at any particular time. Even he was at liberty to choose and not come to the office of the management at all. There was no fixed number of cylinders which were to be delivered by workman every day. This shows that all choice was of the workman, if he chooses he would have delivered the cylinders and earned money at fixed current rate for delivery of cylinders.
Therefore, it seems that submissions of the Ld. AR of the workman that the workman has already completed 240 days of service and he is covered within the definition of workman provided under Industrial Disputes Act, 1947 and he is also a workman as per LPG Gas Cylinder Act and covered under the Sales Promotion Employees (Condition of Service) Act, 1976 is not tenable and can't be allowed. More so, in the case law Workmen of Nilgiri Coop-Marketing Society Ltd. Vs. State of Tamil Nadu & Ors. Supreme Court of India, 2004 LLR 351, it was held that merely because some persons had been more or less continuously working in a particular premises, would not be construed that the relationship of employer-employee has come into existence since other circumstances would be relevant factors.
Hence, it seems that workman has failed to show from any evidence that he was the employee of the management, getting fixed salary from the management and was under control of the management in day to day working with the management, the management could have taken any action against him seems that workman was free to work on any day of his choice to get the commission for delivery of any number of cylinders. Therefore, it seems that the workman has failed to show from the evidence that he was the employee of the management and hence the issue no.1 is decided against the workman and in favor of the management.
(B) FINDINGS ON ISSUE No .2:
"Whether services of the workmen were terminated illegally and/or unjustifiably?"
The onus to prove this issue was also on the workman, but, it is apparent from the above discussion that the workman has failed to show from the record or by leading any evidence that he was employee of the management; therefore, the issue no. 2 can't be decided in favor of the workman. Hence the same is also decided against the workman and in favor of the management.
(C) FINDINGS ON ISSUE No.3:
"Relief."
In view of the above discussion it is crystal clear from the record that workman is not entitled to any relief and hence no relief award is passed against the workman. Ordered accordingly.
A copy of this order be sent to the appropriate government for its publications as per rules.
ANNOUNCED ON 07th August, 2010 (CHANDRA SHEKHAR) POLC-V, KKD/DELHI