Delhi District Court
The vs The on 13 February, 2015
IN THE COURT OF SH. SANJEEV KUMAR
PRESIDING OFFICER LABOUR COURT,
KARKARDOOMA COURTS, DELHI.
ID No. 439/10 (Old ID No.191/09)
IN THE MATTER OF :
Sh. Satyavrat Sharma
S/o Late Sh. Kishan Swroop Sharma
R/o H No. B4/153, Yamuna Vihar,
New Delhi53
........ The Workman
AND
M/s. Sai Taxi Service
Shop No.6, Jang Pura EXT.Market
New Delhi110037
....... The Management
Date of Institution : 17.09.2009
Date of Argument : 08.01.2015
Date of Judgment : 13.02.2015
A W A R D
1. The claimant Sh. filed the complaint against the
respondent M/s Sai Taxi Service before Conciliation Officer with
the submission to reinstate him with back wages and continuity of ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 1 out of 29 service. The matter was agitated in the Labour Department but no positive result had come out as such the reference was made to the Labour Court vide reference No. F.24(34)/Lab./SD/2007/8876 dated 16.09.2009 referred an industrial dispute between the above mentioned parties with the following terms of reference : "Whether the services of Shri Styavrat Sharma S/o Late Shri Kishan Swroop Sharma have been illegally and /or unjustifiably terminated by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect?"
2. Brief facts as stated in the statement of claim are that the claimant/workman has joined with service of Sai Taxi Service as "Driver" for about last 8 years and his last drawn salary was Rs. 6600/ per month. He was a regular and permanent employee of the management. He was driving different vehicles of management from Delhi to Chandigarh, Dehradun, Aligarh, Guhawati, Alwar etc for supply of newspaper for 12 hours daily but no overtime,bonus, legal facility provided to him. No record of appointment, attendence card, leave book,pay slip was maintained by him. The payments of goods were taken by management ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 2 out of 29 directly through cheque. He further stated that the cause of termination was that he was pressing hard for the payment of his due salary and the legal benefits as he was working 12 hours daily like over time, bonus, leave encashment etc. He made several requests/reminders to management for the salary and benefits but management assured and allured to give his entire due payments whenever the funds available or arranged by them. Not only this management started compelling him to sign blank payment vouchers and thereafter threaten, abused and got annoyed and terminated his service w.e.f. 15.09.2005 without assigning any reason or notice in violation of Section 25F, of the I.D. Act. He served demand notice dt. 22.05.06 upon the management but no reply was given by the management. Thereafter, he filed a claim vide LCA No. 47/2006 before court of Sh. Gurdeep Kumar, POLC, however, the said claim was rejected on the ground of limited jurisdiction. He sent a demand notice dt. 06.06.07 which was duly served upon the management but management did not reply to the same. Thereafter, he raised dispute before the Conciliation Officer Govt. of NCT, Delhi. The conciliation proceedings resulted in failure because of the adamant and non co operative attitude of ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 3 out of 29 the management. He prayed that an award be passed in favour of him reinstating him in service with full back wages.
3. Per contra,management in the written statement has denied all the contents of statement of claim. Management has taken preliminary objection that the claimant used the cars of the management on hire bases occasionally as an independent driver to perform the duties of the customers and payment of his charges was being directly paid by the customer on whose duty he used to go. Hence there is no employer employee relationship. Further objection was taken that the case of workman is mis joinder of the parties as Sh. Jai Dev Giri S/o late Sh. Jyoti Giri has no concern with the management M/s Sai Taxi Service and present management i.e. M/s Sai Taxi Service is no more in existence. Further it is stated that present claim has been filed inconnivance of Co workman Rahissuddin who is involved in a serious case of criminal breach of trust and a FIR had also been registered against workman vide FIR No. 443/2006 on 23.06.06 at P.S. Hazarat Nizamuddin on the direction of Hon'ble High Court in Criminal Writ Petition No. 759/2003 titled as Jaidev Giri Vs. State & ANR.
On merit it is denied by the management that the ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 4 out of 29 workman worked as permanent/regular worker and he used to take Rs.6600/ salary per month or joined the management in July 1997. It is alleged that the workman used to take cars of the management on hire basis occasionally as an independent driver to perform the duties of the customers and the payment of his charges for the duties was being directly paid by the customer on whose duty he used to go. It is further alleged that on 15.09.2005 when the workman was allegedly terminated Jai Dev Giri was in Judicial Custody in Bhondsi Jail hence entire case of workman is false. Therefore, the claim of the workman is not maintainable and liable to be dismissed.
4. In the rejoinder filed by the workman contents made in the WS/reply were denied and workman reagitated the contents of claim as true and correct. It is denied that workman used to take cars of management on hire basis as independent driver to perform the duty of customers and he was being directly paid the charges by the customer on whose duty he performed.
5. From the pleading of both parties, vide order dt. 10.11.2010 following issues were framed:
1. Whether the workman had never been in the employment ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 5 out of 29 of the management at any point of time and if so to what effect? OPM
2. Whether the management is no more in existence and if so to what effect? OPM.
3. Whether the management terminated the services of the workman illegally or unjustifiably and if so to what effect?
OPW
6. In order to prove issue, the workman examined 5 witness. He examined himself as WW1, WW2 Akhilesh Kumar Agnihotri, Deputy Manager Product Marketing from the Poineer News Paper,WW3 Bal Krishan, record keeper of from Hindustan Times. WW4 Anil Kumar, Assistant Legal Department, Indian Express Ltd, WW5 Ravinder Sharma, Manager with Ram Service Station .
7. On the other hand management Examined Sh. Ajay Giri, examined as MW1, MW2 Ms. Sonali Nagpal, Clerk SWO Central Bank of India, MW3 Sh. Surender Kumar, Inspector Income Tax department,MW4 O. N. Gupta, Manager, Union Bank of India and MW5 Jaidev Giri.
8. After completion of evidence on behalf of both ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 6 out of 29 parties, I have heard the arguments from Sh. Neeraj Tiwari, Ld. AR for workman and Sh.Kamal Mehta, Ld. AR for management.
9. I have considered the arguments of Ld. ARs for both parties and carefully gone through the material placed on record. My issue wise findings are as under:
ISSUE No.1 " Whether the workman had never been in the employment of the management at any point of time and if so to what effect? OPM"
10. The case of workman is that he was employee of Sai Taxi whose proprietor is Jaidev Giri. Jai Dev Giri has denied that the claimant was his employee or he is proprietor of M/s Sai Taxi but it is stated that the claimant used to hire his car and used to take payment from the customers further it is stated that he is not the proprietor of Sai Taxi but Ajay Giri his son is proprietor.
11. In order to prove is case that the claimant is employee of the M/s Sai Taxi service and Sh. Jaidev Giri is proprietor of management workman has examined 5 witnesses. He examined himself as WW1 and lead his testimony through an affidavit Ex.WW1/A through an affidavit Ex.WW1/A and also relied upon ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 7 out of 29 documents Ex.WW1/1 to Ex.WW1/8. WW1/1 is claim file before Conciliation Officer, WW1/2 is reply file by Jai Dev Giri file before Conciliation Officer, WW1/3 is Replication file before Conciliation Officer, WW1/4 is demand notice dt.06.06.2007, WW1/5 &6 is AD card,WW1/7 is order passed by Sh Gurdeep Kumar POLC on application of workman file u/s 33 C(2) of ID Act, WW1/8 is visiting card in the name of Sai Taxi Service.
12. He has almost repeated the same facts in his affidavit as stated in his statement of claim. He deposed that he is driver of the management since July 1997 and his last drawn salary was Rs. 6600/ p.m. He was a regular and permanent employee of the management. He further stated that he driven different vehicles of the management from Delhi to Chandigarh, Dehradun,Aligarh, Guhati, Alwar etc. He also deposed that management were taking 12 hours work and denied him of legal benefits like over time, leave encashment, attendance card, leave book, payslip or provided by the management etc. In order to victimize him as he was demanding legal benefits management stopped his salary. When he demanded salary management allured him to give entire dues whenever funds available to him. Management compelled ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 8 out of 29 him to sign on blank payment voucher and papers and thereafter abused, threatened and got annoyed and terminated him w.ef. 15.09.2005 withholding his salary from 01.08.2003 to 15.09.2005.
In his cross examination he admitted that an FIR No. 443/06 was registered against him on 23.06.06 at P.S. Hazrat Nizamuddin on the direction of Hon'ble High Court of Delhi in WPC No.759/03 and regarding that FIR a criminal case is adjudicated in the court of Sh. Sudhanshu Kaushik, MM, Saket Delhi. He admitted that he is an independent driver. Sh. Jaidev Giri was the owner of the management Sai Taxi Service. He denied the suggestion that Ajay Kr. Giri was the owner of Sai Taxi Services. He stated M/s Sai Taxi Service is still running. He admitted that he has not filed on record any appointment letter regarding service with the management. He admitted that he was working with Ramesh Kapoor since the day he was terminated from Sai Taxi Services and from last 89 months he left the job and now working as independent driver driving his own car make Maruti Swift Dezire No.DL8CP 6784 registered in his name and presently he is running a general store at his residence. He denied the suggestion that present case is filed on the asking of Sh. ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 9 out of 29 Ramesh Kapoor. He denied the suggestion that he filed the case to extract money. He stated that he was terminated as he was demanding 2 and ½ year salary due upon the management.
13. WW4 Anil Kumar, Assistant Legal Department, Indian Express Ltd. produced the authority letter along with Form16A pertaining to Sai Taxi Service of the year 2009 & 2010 same is Ex.WW4/A, B, C & D. he also proved that the document Ex.WW4/E is letter 15.05.07 written by Vivek Shukla, addressed to IO ASI Islamuddin which contained annexture I.e. details of vehicles used by Indian express. From this annexture it is proved that car used by them was supplied by Sai Taxi service but on perusal of said list I do not find any of car number which workman was allegedly driving for Jai Dev Giri.
14. WW5 Ravinder Sharma, Manager with Ram Service Station produced ledger for the period of 01.04.03 to 31.03.04 pertaining to Sai Taxi Service. As per ledger Sai taxi Service had credit account with the Ram Service Station and the Taxi of Sai Taxi Service used to take petrol from the Ram Service Station and inthe year 200304. He deposed that documents markWW1/X later on exhibited as Ex.WW5/1 bears his signature ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 10 out of 29 at point A. He also proved the copy of the requisition slips earlier marked as MW1/X1 as Ex.WW5/2 and deposed that same were handed over to the IO vide letter Ex.WW5/1. From the document produced by him it is proved that vehicles of Sai Taxi Service were taking petrol on credit from Ram service Station under the account of Sai Taxi service in year 2004 and 2005. On perusal of car no. from document EXWW5/1 I found only car no.2274 is mentioned which workman was allegedly driving.
14. On the other hand management examined Sh. Ajay Giri, who deposed that he is proprietor of the management. It is stated that the complaint filed by him on behalf of said management. He further stated that after closure of the said management he is doing private service and his monthly salary is directly deposited in the account No.30800201091035 in Union Bank of India, Branch Patel Nagar, New Delhi. He further stated that the workman occasionally taken the above mentioned cars of the management on hire bases as independent driver to perform the duty of customers and payment of charges was paid by the customer on whose duty he used to go. He further stated that Jaidev Giri is no more concerned with the management M/s Sai ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 11 out of 29 Taxi Service. Moreover the management M/s Sai Taxi Service is no more in existence. He further deposed that the workman co associate Rahisuddin was involved in a serious case of criminal breach of trust and FIR No.443/06 was registered against on 23.06.06 at PS Hazarat Nizamuddin, on the direction of High Court and the present case was filed by the workman just as a counter blast to the said FIR. He further deposed that on 15.09.2005 when workman was allegedly terminated Sh. Jai Dev Giri was in Bhondsi Jail which shows entire claim of workman is false and frivolous. He further deposed that the workman has filed an application u/s 33C (2) of ID Act and same was dismissed by the court of sh. Gurdeep Kumar, Ld. POLC, against the management which was dismissed by High Court vide its order dt. 05.02.07.
In his cross examination he stated that he is proprietor of Sai Taxi services. The management given its service to news paper agencies on contract basis. He has given his services to Indian Express, Hindustan Times, and two other newspapers on interval basis. He denied the suggestion that he worked for different newspapers agencies as Bisness Standard, ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 12 out of 29 Pioneer, Hindu, Veer Arjun,Rastriya Sahara,Punjab Kesri, Maha Megha, Jagran etc. There is no specific period for providing the services to the news paper agency, they used to provide their services as and when it required they provided the same. He further deposed that he used to raise the bill against the service provide to the different newspapers agencies. He do not have the copies of the bills and he can produce the bank accounts of the management and the bills were reimbursed in the name of management. He denied that the management used to run by Sh. Jaidev Giri. He further voluntarily stated that he used to take advise/help from his father as and when required. He further stated that the Ram Service Station is a petrol pump from where they used to take fuel and the bill mark D are the copy of the bills submitted by M/s Ram Service Station to the management for taking fuel for the vehicles of the management. He used to pay bill to Ram Service Station. The management was closed in the year 2010 perhaps in April. The management has started its business in the year 19992000 and at that time management was having two car for business and has two car when business was closed in year 2010. Management has filed his bank account statement ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 13 out of 29 EXMW2/1 regarding the closure of management. Workman was introduce by Rahissuddin. The workman can hire car for transporting newspaper of different company. He further admitted that his father remained in custody in Bhondsi Jail at Haryana on 15.09.2005. He do not know the reason of his father being in jail. He do not know car no. DL1C 8529 was involve in the incident in said case. He denied the suggestion that workman using his car on hire basis since 1997. He do not know workman used the car no. DL1CB9785 for the period of two year 9 month and used car no. DL1CD8529 for one year eight month and car no. DL4CA9034 for one year two month,car no.DL3CW2274 for one year three month and car no. DL3CZ0750 for approx. one year. He do not know said car belong to his father and used for buisness of news paper of different company. He denied the suggestion that on 15.09.2005 he terminated the services of workman at the instance of his father.
15. MW2 Ms. Sonali Nagpal, Clerk SWO Central Bank of India, has produced the statement of account for the year 20072011 for the account no.1027418806 in the name of M/s Sai Taxi as Ex.MW2/1. From this document nothing is proved who is ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 14 out of 29 owner of Sai Taxi.
16. MW3 Sh. Surender Kumar, Inspector Income Tax department has proved the income tax returns of the year 200720082009 2010 and 2011 as Ex.MW3/1(8 pages). As per him the proprietor of the management was Ajay Kumar Giri. He stated that the returns Ex.MW1/1 ( 5 pages ) is correct. But on perusal of these returns I found that same has been filed in the personal capacity by Ajay Giri and do not bear name of Sai Taxi,hence these Income Tax Return do not proved that Ajay Giri is proprietor of Sai Taxi.
17. MW4 O. N. Gupta, Manager, Union Bank of India, who has produced account opening farm which is Ex.MW4/1 ( 2 pages colly) in the name of Ajay Giri, Ex.MW4/2 pan card, Ex.MW4/3 election card, Ex.MW4/4 is DL , KFC restaurant Identity card is Ex.MW4/5 and Ex.MW4/6 opening of salary account given by the company for Sh. Ajay Giri S/o Sh. Jai Dev Giri, and statement of accounts for the year 28.06.12 to 28.01.14 Ex.MW4/7 three pages collectively. He deposed that the account number of Sh. Ajay Giri is No.30800201091035. This account is salary account of Ajay Giri. Thus from these documents it is ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 15 out of 29 proved that salary account of Ajay Giri was opened by A.N. Traders on19.06.12. Thus proved that Ajay Giri was working in A.N. Traders from 19.06.12.
18. MW5 Jai Dev Giri has deposed that he has no concern with the Sai Taxi and his son Ajay Giri was the proprietor. He never appointed the claimant under the employment of Sai Taxi Service. Claimant used his car on hire basis as a independent driver to perform duties of customer and payment of his charges for duties were ditectly paid by customer. The day on which workman was allegedly terminated i.e. on 15.09.2005 he was in JC in Bhondsi Jail which shows entire claim of workman is false.
In his cross examination he deposed that he know the workman for last 910 year. Workman came to him with the reference of Sh. Ramesh Kapoor for providing car on contract basis. He had not entered into contract with the workman in this regard. The car no. DL1CB 9785, DL3CZ0750 and DL1CD8529 was owned by him. However he denied the suggestion that workman driven the said car DL1CB 9785 for two year and 9 month and drove the car no. DL1CD8529 for one year eight month The car no. DL4CA 9034 not owned by him. He do not know ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 16 out of 29 whether workman droved the said car for one year and two month. He do not remember car no. DL3CW 2274 was owned by him and vol. He was owner of 56 car but do not remember the exact number. Sometime car owned by him used in taking newspapers from Indian Express, Jansatta, Dainik Jagran etc. Many driver used to take vehicle for delivery of newspaper as and when any particular driver demanded the same on hire basis. He had contract with newspapers for delivery of newspapers but cannot produce document of contract as same was old record. He denied the suggestion that he still had contract with newspaper as a owner of Sai Taxi Service. Cheque was issued in his name. He can produce the account statement in which cheque were deposited. He denied the suggestion that workman was his permanent driver and getting salary of Rs.6600/ per month and he did not pay salary from 01.08.2003 to 15.09.2005.
19. It is argued by Ld. ARM that onus was upon the workman to proved to proved that Jaidev Giri was proprietor of Sai Taxi Service and was workman was employee of Sai Taxi service but workman through the evidence led by him has misrebly failed to proved the said facts.
ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 17 out of 29
20. On the other hand Ld. ARW has argued that workman through his testimony and the documents proved by him and WW4 and WW5 has been able to proved that Jaidev Giri was proprietor of Sai Taxi Service and was workman was employee of Sai Taxi service.
21. I have considered the arguments of rival parties. As evident from the W.S. of the management/respondent it has taken two ground to deny that the claimant is not employee of Sai Taxi service whose proprietor is Sh. Jai Dev Giri. It is argued that Jai Dev Giri has no concerned Sai Taxi Service as proprietor of Sai Taxi Service is Sh. Ajay Giri. Second objection of respondent/management is that the claimant was not the employee of the management but he has taken the car of the management on hire basis.
22. As far as first defense of management is concerned though respondent Jaidev Giri has denied that he is proprietor of the Sai Taxi Service and has asserted Ajay Giri is the proprietor of Sai Taxi but on perusal of the W.S. filed by the Jaidev Giri EXWW1/2 before Conciliation Officer I found that in the said W.S. Jai Dev Giri had taken no such objection that he was not ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 18 out of 29 proprietor of Sai Taxi Service. No suggestion has been given to Workman/WW1 by AR of respondent that signature on WW1/2 is not of Jaidev Giri. Even in his affidavit EXWW5/1 Jai Dev Giri had not stated that WW1/2 does not bear his signatures. Management had not taken the plea that he did not appear before Conciliation Officer. Hence there is no ground to disbelieve that said WS was not filed by Jai Dev Giri. Even from the perusal of order dt. 5.2.2007 EXWW1/9 passed by Sh. Gurdeep Kumar on the application filed by workman u/s 33C(2) of ID Act it is evident that Jaidev Giri had not taken objection that he is not proprietor of M/s Sai Taxi service. The MW5 Jai Dev Giri has admitted that in his cars newspapers were used to be delivered. He has not explained in what capacity he used to delivered newspapers to Chandigarh and other places to various newspapers agency. Definitely if he was delivering news papers than he must have entered into agreement with newspapers agency. In the visiting card EXWW1/8 name of Jai Dev Giri and Sai Taxi Service is mentioned which proved he has some relation with Sai Taxi Service. No suggestion has been given to the workman that said visiting card is not of Jai Dev Giri. No documents has been place ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 19 out of 29 by management that Ajay Giri was proprietor of Sai Taxi service in the year 2005 or prior to it. Hence, in view of the aforesaid facts I held that preponderance of evidence is in favour of workman that Jai Dev Giri was the proprietor of M/s Sai Taxi Service.
22. As far as next defense of management is concerned I am fully agree with the contention of the Ld. ARM that the onus was on the workman to prove that he is employee of the management and has worked continuously for 240 days in a year proceeding his termination. In this regard I rely upon the judgement N.C. John Vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers Union and others 1973 Lab, IC 398, the Kerala High Court held that:
" the burden of proof being on the workmen to establish the employeremployee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
In R.M. Yellatti Vs. Assistant Executive Engineer (2006)1 SCC 106 . the Supreme Court observed as follows: "...........However, applying general principles and on reading the (aforesaid) judgments, we find that ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 20 out of 29 this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case."
26. Applying the principles laid down in the above case by this Court, the evidence produced by the appellant has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service."
The following principles laid down by the Supreme Court Range Forest Officer Vs. S.T. Hadimani in (2002) 3 SCC 25 : "3............ in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 21 out of 29 that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but his claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filling of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On the ground alone, the award is liable to be set aside."
Therefore, the petitioner's contention that his statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."
24. Now reverting back to the case, though the workman in his oral testimony has deposed that he was working with the management since year but he has not given any specific date or month in his statement of claim or affidavit when he joined the service with the management. The workman has deposed that no appointment letter, attendance card, leave book, pay slip was issued to him but he has failed to prove that why he has not filed any complaint to the management or labour authority in this regard. Further more the workman has stated in his statement of claim as well as in affidavit EXWW1/A that he was not paid ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 22 out of 29 salary by the management from 01.08.2003 to 15.09.2005. It look very unlikely that workman work such a long period without getting his salary. He had not proved any complaint file before management or labour authority prior to his alleged termination that he was not being paid salary for such a long period. It will be very difficult for a person to survive for such a long period without salary until he has some other source of earning. Hence in these circumstances it would not be safe to rely upon sole testimony of workman.
25. To proved relationship of employeremployee best proof is appointment letter, wage slip, muster role, attendance register ESI or PF record or any other documents could be relevant documents as held in judgement of the Hon'ble High Court of Delhi in case titled as Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006LLR551. Relevant para is reproduced as under: "14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 23 out of 29 leave record, deposit of provident fund contribution and employees state insurance contributions etc."
25. As stated above the workman has not produced any appointment letter, wages slip, I card, muster roll and any other document which shows that he is employee of Jai Dev Giri. According to workman management has not supplied these documents to him. But workman has failed to explained why he had not filed any complaint prior to his alleged termination in this regard hence said averment of workman appeared to be afterthought.
26. As far as documents relied upon by workman is concerned he has relied upon documents Ex.WW1/1 to WW1/8. The documents WW1 is claim petition filed before Conciliation Officer,Ex.WW1/2 is the copy of written statement filed by the management,Ex.WW1/3 is replication to the W.S. of management. From WS it is evident that management has denied that claimant is his employee. The document EX WW1/4 is copy of the demand notice dt. 06.06.07 sent by Sh. Neeraj Tiwari, Advocate, to Jai Dev Giri. The document Ex.WW1/7 & 8 are the AD cards regarding receiving of demand notice. All these ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 24 out of 29 documents are part of proceeding taken by workman prior to and before Conciliation Officer and only proved that workman is asserting himself as employee of management but do not itself proved that the claimant is employee of the management and could be only upon as corroborative evidence. The document Ex.WW1/7 is order dt. 05.10.07 passed by by Sh. Gurdeep Singh in application us 33 (C) (2) of the ID Act filed against management. The document Ex.WW1/8 is visiting card which as stated above only prove that respondent Jai Dev Giri has some connection with Sai Taxi service.
26. The document mark WW1/x relied upon by workmn later on proved by WW 5 are bills raised by Ram Service Station(petrol pump) of the period of November, 2004 to 31st August, 2005 qua Sai Taxi Service. The document mark D which was Exhibited as WW4/E is reply alongwith annexure of the Varun Shukla, an official of Indian Express Newspapers Ltd., to Mr. Islamuddin, Asst. Sub Inspector DIU through which he informed that details of vehicles used by them from Sai Taxi Service is available from August, 2004 to November, 2004. Hence no document proved by workman is related with his employment. ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 25 out of 29 Jaidev Giri may have been running Sai Taxi service, or taking petrol on credit for his car or may be delivering the newspapers. But these documents itself do not prove that workman is employee of JaiDev Giri or Sai Taxi Service.
27. As far as contention of Ld. ARW that Jai Dev Giri has admitted that workman used to drive his car therefore said admission is proof of employment. Undoubtedly Jai Dev Giri has admitted in his WS as well as testimony that workman used to drive his car and used to deliver newspapers of the management at Chandigarh but that itself do not prove that he driven the same as employee of the Jai Dev Giri or that he has worked for 240 days continuously in a year prior to his alleged termination. He has categorically deposed in his testimony workman used to hire his car as independent driver. Nothing much has come out in his crossexamination. More ever the workman has to proved his case by leading cogent oral and documentary evidence as onus was on him to prove he was employee of respondent but as stated above he has failed to led the cogent, reliable evidence. I do not find his testimony reliable for the reason as discussed above whereas documents proved by him do not prove that he is employee of Sai ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 26 out of 29 Taxi Service. Hence, I held that the workman has failed to prove that there exists any relationship of employeremployee between and M/s Sai Taxi Service. Hence Issue no.1 is decided against the workman.
Issue no.2 " Whether the management is no more in existence and if so to what effect? OPM."
28. The onus was on the management to proved that Sai Taxi service has been closed. The management has examined MW1 to MW5. Through both MW1Ajay Giri and MW5 Jai Dev Giri have deposed that Sai Taxi Service has been closed but the documents of bank account or income Tax produced by MW1 to MW4 are not related with closure of Sai Taxi Service. No other documents have been produced to represent oral testimony that Sai Taxi Service has been closed. Hence I held that respondent has failed to discharge the onus. Therefore I held that respondent has failed to prove Sai Taxi Service has been closed.
Issue no.3 " Whether the management terminated the services of the workman illegally or unjustifiably and if so to what effect? OPW"
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29. In view of my findings on issue no.1 I held that when the claimant is not employee of respondent hence no question of alleged termination by Sh. Jai Dev Giri, proprietor of M/s Sai Taxi Service. Even otherwise as stated above no termination letter has been produced by the workman to prove that his service was terminated by Jai Dev Giri on 20.11.1995. The workman has admitted in his cross examination that he was working with Ramesh Kapoor since the day of his termination from M/s Sai Taxi Service. It is highly unlikely that the workman has got alternative job on the same day when he was being terminated by Jai Dev Giri. Further MW1 has deposed that his father Jaidev giri was in Bhondsi Jail on 15.09.2005. No suggestion has been given to him that Jaidev Giri was not in jail. Rather suggestion to MW1 that he terminated service of workman on behalf of his father amount to admission that Jai Dev Giri was in jail on 15.09.2005. It is not the mentioned in the statement of claim or affidavit of workman that he was terminated by Ajay Giri MW1on behalf of his father hence same is afterthought. Therefore even if for the sake of argument I presume that claimant was employee of Jai Dev no question of his termination on 15.09.2005 by Jai Dev Giri ID No.439/10 Satyavrat Sharma M/s Sai Taxi Service Page No. 28 out of 29 proprietor of Sai Taxi arise as he was in jail on that day. Hence in these circumstances I do not find his testimony reliable that he was terminated by Jaidev Giri on 15.09.2005. In these circumstances I held that workman has been failed to prove that he was terminated by the management much less illegally or unjustifiably. Hence Issue no.3 is decided against the workman.
Relief
30. In view of my finding on issue no.1 and 3 I held that the workman is not entitled to any relief. His claim is hereby dismissed. Reference is answered accordingly. Copy of the award be sent to the Secretary (Labour), Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.
Announced in the Open Court on 13th February, 2015 (SANJEEV KUMAR) Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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