Delhi District Court
Through vs M/S Gouri Enterprises on 21 December, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 5582/16
Sh. Kripal Singh
S/o Sh. Sahib Singh
R/o: RZC125, New Roshan Vihar
Phase - I, Najafgarh,
New Delhi - 110043
Through
Rashtriya Rajdhani Kshetra
Engineering and General
Majdoor Union (Regd),
C139, Karampura,
New Delhi - 110015
....CLAIMANT
VERSUS
M/s Gouri Enterprises,
Shops No. 4849,
Dada Dev Mandir Market,
Sector - 7, Dwarka,
New Delhi - 110077
....MANAGEMENT
Date of institution of the case : 15.12.2014
Date of passing the Award : 21.12.2018
LIR No:5582/16 Page 1 of 17
AWARD
1.A reference dated 14.11.2014 was received for adjudication by this Court which was sent by Dy. Labour Commissioner, under Section 10(1)(c) and 12(5) of I.D.Act, read with Notification no. F.1/31/616/ESTT./2008/7458 dated 03.03.2009, on a complaint filed by Claimant against the Management, wherein the following reference was to be answered: "Whether there existed an employer employee relationship between the management and Sh. Kripal Singh S/o Sh.
Sahib Singh and Sh. Vikas Kumar S/o Sh.
Kripal Singh and if so, whether services of the said Sh. Kripal Singh and Sh. Vikas Kumar have been terminated illegally and/ or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, claiming therein, that he was working with the management as Delivery man since March 1996 and his last drawn salary was Rs. 10,000/ per month. The workman had worked to the utmost satisfaction of the management without offering any chance of complaint nor he was ever charge sheeted by the management. It was LIR No:5582/16 Page 2 of 17 further stated that the management had deprived the workman of the statutory benefits such as appointment letter, attendance card, ESI, pay slip, paid holidays as well as CLs etc. Neither his attendance was recorded by the management nor his signatures were obtained on the salary register. When the workman had raised the aforesaid demands, the management got annoyed and upon his raising the demand for his due salaries for the several months, then the management had terminated his services abruptly on 01.06.2014 in an illegal and arbitrary manner withholding his wages for the period from 01.01.2014 till 31.05.2014.
3. On 05.06.2014, the workman had made a complaint before the Asst. Labour Commissioner through his Union after which the Labour Inspector had inspected the premises of the management and had asked it to reinstate the workman and also to pay his dues but the management did not pay any heed to the same and had flatly refused to reinstate the workman.
4. Thereafter a demand notice dated 24.06.2014 was sent to the management vide speed post on 01.07.2014, however, despite service of the same, the management had neither replied nor complied with the said notice.LIR No:5582/16 Page 3 of 17
5. Thereafter on 08.07.2014, the statement of claim was filed before the Conciliation Officer in which the management had stopped appearing after filing its written statement.
6. After failure of the conciliation proceedings as well as other labour proceedings, the present reference was made and sent to this Court for adjudication. It was prayed in the statement of claim that the workman was entitled to reinstatement in service with full back wages as well as continuity of service and a direction be issued to the management in this regard.
7. Notice of the claim was issued to Management who was duly served with the same and had also appeared to contest the claim of claimant on merits and filed its written statement wherein it was stated that no employer and employee relationship existed between the parties and Kripal Singh who was stated to be working with the management on contractual basis, without the knowledge and permission of the management to assist him in the work of delivery man has employed his son Vikas.
8. On merits all the contents of statement of claim unless the same were specifically admitted or essentially or LIR No:5582/16 Page 4 of 17 purely constituted the matter of record, were denied by it as wrong and incorrect.
9. Workman had also filed his replication to the said written statement wherein he had denied the contents of WS as wrong and reiterated the contents of his statement of claim as correct.
10. Vide order dated 06.08.2016, ld. Predecessor of this Court was pleased to frame the following issues :
1. In terms of reference.
2. Relief.
11. In order to discharge the onus of proving his case, the workman had stepped into the witness box as his own witness and filed in evidence, his examination in chief by way of affidavit Ex. WW1/A, wherein, he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, the workman had also placed reliance on the following documents :
1. photocopy of the representation dated 05.06.2014 made to the Asst. Labour Commissioner on the letter head of the Union is Ex. WW1/1;
2. photocopy of the demand letter dated 24.06.2014 along with its postal receipt is Ex. WW1/2 and Ex. WW1/3;
LIR No:5582/16 Page 5 of 173. photocopy of the statement of claim filed before Conciliation Officer is Ex. WW1/4;
4. photocopy of the rejoinder filed to the reply of the management before the Conciliation Officer is Ex. WW1/5;
5. some receipts pertaining to the management as Ex. WW1/6 (totalling 8 receipts)
12. During his cross examination conducted by ld. AR for the management, it was deposed by the workman that he was living in his own house for the last about 21 years which was purchased by him for an amount of Rs. 80,000/. However, he was not aware of the name of the previous owner as he had purchased the property from a dealer. Management was stated to have been joined by him in the year 1996 and his salary used to be around Rs. 5,000 to 7,000/ per month at that time. When he was asked to place on record the document to prove his appointment with the management since 1996, then he had placed on record the receipt Ex.WW1/6 stated to be bearing his signatures at pt. A. However, the said document was stated to be not bearing any seal or stamp of the management and when the workman was confronted with his signatures appearing on the said document at pt. A with his other signatures, the witness had admitted that the same were different. It was further admitted by him that LIR No:5582/16 Page 6 of 17 even the document Ex. WW1/6 was not containing his name on any of the said receipts. Those slips were stated to have been procured by the witness from the customers whose names he could not recollect. The receipts were stated to have been collected by him after termination of his job by the management. It was however, denied by him as wrong that he had no concern with the receipt /slips or that those slips were arranged by him for filing of the present false and fabricated case against the management.
13. He was stated to have purchased two motorcycles and two four wheelers in the last 10 years. However, again a uturn was taken by him and it was stated that he had purchased only one motorcycle and other three vehicles were gifted by his in laws for their respective sonsinlaw. He was stated to have purchased one vehicle in the year 2011 bearing no. DL9SAH7030. It was also admitted to be correct by him that vehicle no. DL 8CAC0549 make Bolero was also got financed by him from the bank whose EMI was around Rs. 13,000/ per month. However, again he had taken a uturn and stated that father in law of his son Gaurav namely Sh. Dhruv Singh used to deposit the said amount in his bank account for the purpose of payment of EMI as the said vehicle was used by his son Gaurav and was attached to Metro. Again he had taken a uturn and had stated that he used to go to LIR No:5582/16 Page 7 of 17 his office in the morning and hence he had no knowledge as to for what purpose, the said vehicle was used by his son Gaurav who was working in Blue Star but he was also not aware of his exact work profile.
14. Workman was stated to be having his bank account in PNB, Najafgarh and was also having a PAN Card and could have produced the bank account's passbook of the last three years. His son Vikas Kumar was stated to be residing separately from him and bearing all his expenses on his own and he himself was residing with his son Neeraj and was using his kitchen, while Neeraj was stated to be working as Helper in gas distribution company AOne Najafgarh.
15. Further he was stated to have never been issued any ID Card of the management nor he was having any appointment letter in his name issued by the management. He was stated to be working as a delivery man with the management but he was not having any certificate in respect of weighing machines used by the company. It was admitted by him that Ex. WW1/3 was a computer generated slip without any certificate. No documentary proof was filed by him on record to show that demand notice Ex. WW1/2 was actually served upon the management. It was also admitted by him that he had filed LIR No:5582/16 Page 8 of 17 the case before the Competent Authority under Shops and Establishment Act. However, he was not aware of the outcome of the said case. He had denied his signatures on document Mark WW1/MX1 which is the copy of contract executed between him and the management on 01.01.2013. He was stated to have come to Delhi in the year 1995 and that too empty handed prior to which he was doing farming as labourer in his own village and was earning Rs. 100 to 125 per day in the year 199596.
16. In his further cross examination conducted by ld. AR for management on 09.08.2017, he had placed on record the copy of his bank statement for the period 01.08.2014 till 03.08.2017 as Ex. WW1/DA. He was stated to be receiving his salary in cash from the management and required about Rs. 12,000/ per month to run his household in the year 2006. He was stated to be depositing his salary in his bank account maintained with PNB, however, there was no fixed date for payment of his salary by the management and generally he used to get it by 15th of every month. It was however denied by him as wrong that whatever he had deposited in the bank account was his net saving after deducting his household expenses.
17. Three of his sons namely Gaurav, Neeraj and LIR No:5582/16 Page 9 of 17 Vikas were stated to be earning in the year 2006 who also used to give their earnings in cash to him which he used to deposit in the bank. He was stated to be jobless as on 25.10.2016 and was stated to have received some amount by leasing out his agricultural land out of which he had deposited Rs. 40,000/ in his bank account and had also sold a plot for an amount of Rs. 8,00,000/ and out of the sale amount, he had deposited some amount in his bank account. Other formal suggestions were also denied by him as wrong and incorrect. Thereafter workman's evidence was closed.
18. In rebuttal, Sh. Mukesh Bhatt, proprietor of management had appeared in the witness box and filed in evidence, his examination in chief by way of affidavit Ex. MW1/1. Besides this, he had also placed on record the contract executed between him and workman Sh. Kripal Singh as Ex.MW1/A and the order passed by the Competent Authority under the Delhi Shops and Establishment Act dated 04.01.2016 as Ex. MW1/B.
19. In his cross examination conducted by ld. AR for the workman he had stated that he was running this agency since 1988 and had shifted to its present address in the year 198990. During initial years, his godown was stated to be located in Vasant Vihar. It was denied by him LIR No:5582/16 Page 10 of 17 as wrong that in the year 1996, he was having his godown in Raj Nagar, Palam. It was though admitted as correct by him that the workman was working with him as Delivery Man. However, the management was not maintaining any record of customers whose cylinders were handed over to the delivery man for their delivery, nor, the signatures of delivery man were obtained on any paper while handing over him the cylinders. However, it was denied by him that the workman was working with him as Delivery Man since March 1996 and had stated that he had started working with him since 01.01.2013.
20. The witness had also denied first 2 pages of Ex. WW1/6 as pertaining to him being fake. However, remaining 6 receipts were admitted by him to be pertaining to his agency only. Since workman was working on contract basis with the management, hence, his attendance was not marked and he was paid against his signatures on the voucher and no fixed period for payment was agreed upon between the parties. It was stated further that as per the wishes of the Claimant, he could have claimed his dues which could have been weekly, fortnightly or monthly as and when desired by him. It was again denied by him that workman was working on a fixed salary of Rs. 10,000/ per month and not on contract basis. Since the workman was never under his employment hence, the LIR No:5582/16 Page 11 of 17 question of providing him any statutory benefits did not arise at all.
21. Other suggestion regarding obtaining of signatures of the workman on printed as well as blank papers etc were denied by him as wrong .
22. Workman was stated to have never approached the management since 01.05.2014, however, no notice of his absenteeism was ever sent to him by the management. Demand letter was stated to have been received by the management which was duly replied by it. Other formal suggestions were denied by him as wrong and incorrect and since the workman had never remained under his employment, hence, the question of taking him back on employment did not arise at all. After this, the management evidence was also closed.
23. I have heard Sh. Piyush Jain, ld. AR for the management and Sh. Kirori Lal, ld. AR for the workman who had also placed on record his written submissions mentioning the documents exhibited by the workman in his evidence. It has been submitted in the written submission that dismissal of the case of workman by Labour Commissioner's office had nothing to do with the present case. He has also placed on record two citations : LIR No:5582/16 Page 12 of 17
1. Automobile Association of Upper India v/s P.O, Labour Court II & Anr, 2006 LLR 851 (Delhi High Court) wherein it has been held that the burden of proving/ establishing the relationship of employer and employee lies upon the person who had claimed the same and the appointment of the person with the particular employer could be proved either by production of appointment letter, written agreement or by circumstantial evidence or incidental and ancillary record in the nature of attendance register, salary register, leave register or membership of ESI and PF.
(2) Public Works Department Vs. Dev Sukh and Ors; 2004 LLR 158 (Rajasthan High Court), wherein, it was stated that High Court will normally not interfere in the award of Labour Court pertaining to reinstatement with full back wages in exercise of its writ jurisdiction particularly when the employer had failed to prove that the workman was engaged for a fixed period or that he had not completed 240 days in a year immediately preceding his alleged termination.
24. Besides the above, it was further stated on behalf of the workman that even a contractual employee is also covered within the definition of workman as provided under Section 2(s) of the I.D.Act. It was also stated that management had failed to place on record any cash payment voucher or delivery details in respect of the alleged agreement for the period from 01.01.2013 till LIR No:5582/16 Page 13 of 17 31.12.2013.
25. Be that as it may, the basic question for determination in the present case is the existence of the employer and employer relationship between the parties.
26. In the light of the aforesaid testimonies of the witnesses as well as the submissions advanced by both the parties, my issue wise findings are as under :
Issue no. 1. In terms of reference "Whether there existed an employer employee relationship between the management and Sh. Kripal Singh S/o Sh. Sahib Singh and Sh. Vikas Kumar S/o Sh. Kripal Singh and if so, whether services of the said Sh. Kripal Singh and Sh. Vikas Kumar have been terminated illegally and/ or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
The onus to prove the existence of employer and employee relationship as well as termination of his service by the management in an illegal and/ or unjustifiable manner was solely upon the workman and from his testimony, it is inferred that the workman had claimed the termination of his services by the management on 01.06.2014 when his last draw salary was stated to be LIR No:5582/16 Page 14 of 17 Rs. 10,000/ per month, whereas in his cross examination conducted by ld. AR for the Management on 09.08.2017, he was stated to be requiring Rs. 12,000/ per month to run his household expenses in the year 2006 and that too when he was residing alone which shows that the salary of the workman must have been much lesser in the year 2006 when he required Rs. 12,000/ for his household. He could not justify the difference between his earning and expenses at the relevant point of time. Furthermore, the workman had very frequently taken the uturns in his version and could not justify the hefty cash transaction in his account which shows that he was a welloff person since the beginning who had no need to undertake any employment much less that of a delivery man as claimed by him.
So far as receipt Ex. WW1/6 is concerned, the workman himself had admitted during his cross examination that the signatures appearing thereon were apparently different from his signatures as appearing on record which fact itself casted a serious shadow of doubt on the authenticity of the said document. Only a formal suggestion with regard to the fabrication of Ex. MW1/A has been given to the management's witness on behalf of the workman without any further proof to prove its fabrication.
A perusal of the record reveals that the said LIR No:5582/16 Page 15 of 17 agreement was executed between the management and workman and had to remain in force as per the sweet will and wishes of the parties.
Furthermore even the Competent Authority under the Delhi Shops and Establishment Act was also pleased to dismiss the claim of the workman for his demand of wages as he had failed to prove his employment under the present management which he had also failed to prove even by the preponderance of probabilities before this Court as well.
Since the workman has not been able to establish his employment with the management, hence, the question of termination of his service either in an illegal or unjustified manner does not arise at all. Accordingly, this issue is answered in negative and decided against the workman and in favour of the management.
Issue no. 2. Relief - In view of my findings to the above mentioned issue, the present statement of claim as filed by the claimant is dismissed being devoid of any merits.
Award is passed in the said terms. Reference stands answered accordingly.LIR No:5582/16 Page 16 of 17
Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 21.12.2018
LOKESH Digitally signed
by LOKESH
KUMAR KUMAR SHARMA
Date: 2018.12.26
SHARMA 15:02:35 +0530
(LOKESH KUMAR SHARMA)
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOURT COURT XIX
DWARKA COURTS : NEW DELHI
LIR No:5582/16 Page 17 of 17