IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS : SHAHDARA : DELHI I.D. NO.641/06 Date of Institution : 3.1.2002 Award reserved on : 8.8.2007 Date of Award : 12.09.2007 BETWEEN MANAGEMENT OF : M/S KARTIK KUNAL INTERNATIONAL, C-7, JEEWAN PARK, PANKHA ROAD, UTTAM NAGAR, NEW DELHI-59. AND ITS WORKMAN : SH. ABDUL AZEEZ S/O SH. ABDUL HAMID C/O RASHTRIYA GENERAL MAZDOOR UNION, F-35, KARAMPURA, NEW DELHI-15. AWARD 1. Vide Notification No. F.24(642)/2002-Lab./11715-19 dated 24.6.2002 Secretary (Labour), Delhi Administration has referred dispute raised by the workman to this court for adjudication under [SECTION] and [SECTION] of the [ACT] (hereinafter called the Act) with the following terms of reference : "Whether the services of Sh. [ENTITY] S/o Sh. [ENTITY] have been terminated illegally and/or unjustifiably by the management, and if so, to what 1 sum of money as monetary relief alongwith consequential benefit in terms of existing Las/Government notification and to what other relief is he entitled and what directions are necessary in this respect?" 2. Statement of claim was filed by the workman pleading therein following averments. He had been working with the management as cutting master for the last six years at the wages of Rs.2600/- per month. Management did not give him legal facilities such as, issuance of attendance card, leave book, grant of increment, Employee State Insurance and Provident Fund contributions. When he demanded these benefits management got annoyed and terminated his services on 3.10.2001. Management withheld his wages for the month of September 2001. He sent a demand notice to the management on 16.10.2001 and 29.10.2001. Management also used to work as M/s La Creations at B-19, Namdhari Colony, Kirti Nagar. He used to work for both the firms as they are one and the same. 2 Termination of his services is unLaful as junior to him have been retained. He has prayed for his reinstatement with continuity of service and full back wages. 3. Management contested his claim vide its written statement. It is stated that there is no relationship of employer and employee between the parties. It is further stated that he is not a workman within the meaning of [SECTION] of the Act. It is denied management used to work as M/s La Creations at B-19, Namdhari Colony, Kirti Nagar. It is denied that management has any concern with M/s La Creation or any other firm. It is stated that since he was never employed by the management there was no question of termination of his services. 4. My Ld. Predecessor framed following issues on 19.1.2005: 1. As per terms of reference. 2. Relief. 5. Claimant examined himself as WW-1 and thereafter closed his evidence. Management examined Sh. [ENTITY], its Manager as MW-1 and thereafter closed its evidence. 3 6. I have carefully perused the case file and also heard Ld. Authorised Representative for both parties. ISSUE NO. 1 7. Reference was made by the appropriate government against M/s Kartik Kunal International. Claimant pleaded that management also worked in the name and style of M/s La Creations. Management had denied that it ever worked as M/s La Creations. 8. Claimant is not clear about his case. In his statement of claim he said that he had been working with the management namely M/s Kartik Kunal International for the last six years (para 1). In his cross- examination he stated that he worked for six years with M/s La Creations. I quote relevant extract. "I worked for six years with M/s La Creations. I was terminated by this management w.e.f. 3.10.2001. I was terminated by La Creations for which I lodged case before Karampura Labour Officer. There the case was 4 heard for two-three hearing but no settlement could be arrived at. I have not raised any other case against any other management before conciliation office. I was ready to join the duty with the M/s La Creations but they did not take me on duty. I had kept the condition with M/s Law Creations that I will join back duty only after the management deposits my back wages in the court because I was scared of said management." 9. Claimant sent demand notice Ex.WW1/3 to M/s Kartik Kunal International and Ex.WW1/6 to M/s La Creations also. 10. Onus is on the claimant to prove that he had worked with the management against which reference has been made i.e. M/s Kartik Kunal International as is clear from the following judgments. In [PRECEDENT] recently our own Hon'ble High Court discussed the issue of onus of proof of employment and 5 observed as follows : "It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the La of evidence that he who asserts must prove. Based on the rule of [ENTITY] - 'el incumbit probatio, qui dicit, non qui negat' - the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and no upon the party who denied it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman." 11. How the worker can prove that he was the workman of the respondent management was clarified by our own Hon'ble High Court in
the case of [PRECEDENT] wherein it was held that workman can prove his employment by production of appointment letter, written agreement or by circumstantial evidence which can be in the nature of attendance register, salary register, leave record, deposit of PF contribution, employees state insurance contribution. It was also held that the workman can call upon the management to produce these records and on failure of the management to produce such record, an adverse inference can be drawn against the management.
12. Claimant in his testimony has relied upon documents which are Ex.WW1/1 to WW1/9. None of these document prove relationship of workman and employer between the parties. Ex.WW1/1 is letter of the Rashtriya General Mazdoor Union to Labour commissioner requesting for reinstatement of workman. Ex.WW1/2 is report of the labour inspector stating that Mr. [ENTITY] appeared for the management but refused to reinstate the claimant. Ex.WW1/2 is demand notice of the claimant sent to the management. Ex.WW1/4 and WW1/5 are the postal receipts. Ex.WW1/6 is demand notice sent to M/s La Creations. Ex.WW1/7 is postal receipt. Ex.WW1/8 is letter sent by the Rashtriya General Mazdoor Union to M/s La Creations which was returned back undelivered, Ex.WW1/9 is photocopy of postal receipt.
13. MW-1 deposed that he had brought the attendance register and wages register for the period 1996-2001 and that these document did not bear name of the claimant as he had never worked with the management. There is no cross-examination of this witness regarding these documents.
14. Claimant in his cross-examination admitted that he has no documents to prove his plea that there was administrative and financial connection between the management and M/s La Creations. He said, " I have no proof to establish the fact that there was control, administration or financial integration between the two firms."
15. There is absolutely nothing on record to accept the oral testimony of the claimant that he was a workman of the management. Oral testimony alone is not sufficient as held in [PRECEDENT] :
" in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence 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 this 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 proceeding his termination. Filing 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 this ground alone, the award is liable to be set aside." (emphasis added)
16. Claimant has failed to prove relationship of employer and employee beteween the parties. As such, there was no question of termination of his services. This issue is accordingly decided in favour of the management and against the claimant.
ISSUE NO. 2 : Relief.
17. So the workman is not entitled to any relief. File be consigned to record room.
Announced in open court on 12.09.2007 PRESIDING OFFICER LABOUR COURT NO. XIII KARKARDOOMA COURTS: DELHI