IN THE COURT OF SH. MANMOHAN SHARMA PRESIDING OFFICER LABOUR COURT NO. XII, KARKARDOOMA COURTS, DELHI ID No. 286/08 Industrial Dispute Between Sh. [ENTITY], S/o Sh. Bhikki, C/o. Rashtriya Trade Employees Congress, 52C, Okhla Industrial Estate, Phase3, New Delhi. Workman AND The management of 1. M/s. The Indian Newspaper Society, INS Building, Rafi Marg, New Delhi. 2. M/s. [ENTITY], 2139, Pocket SectorB, Basant Kunj, New Delhi. Management Date of institution : 27.08.2003 Date of argument : 17.07.2010 Date of order : 31.07.2010 AWARD 1. An Industrial Dispute between the management of 1. M/s. The Indian Newspaper Society, INS Building, Rafi Marg, New Delhi, and 2. M/s. [ENTITY], 2139, Pocket SectorB, Basant Kunj, New Delhi and its workman [ENTITY], S/o Sh. Bhikki, C/o. Rashtriya ID No. 286/08 Page 1 out of 15 Trade Employees Congress, 52C, Okhla Industrial Estate, New Delhi was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by [SECTION], [SECTION] and [SECTION] of the [ACT] (hereinafter to be referred as Act) vide his Order No. F. 24 (718)/03/Lab. 1062126 dated 30.07.2003 with the following terms of reference : "Whether the services of Sh. [ENTITY],S/o Sh. Bhikk, C/o. Rashtriya Trade Employees Congress, 52C, Okhla Industrial Estate, Phase3, New Delhi20 have been terminated illegally and/or unjustifiably by the management and if so to what sum of money as monetary relief along with consequential benefit in terms of existing law/Government notification and to what other relief is he/are entitled and what directions are necessary in this respect?" 2. The notice of reference was issued to the workman who filed the statement of claim. 3. The case of the workman is that he was employed with M/s. Indian Newspaper Society since December, 1998 as a 'Sweeper' and his last drawn salary was Rs. 2670/ p.m.; that the workman worked diligently and honestly and the management was fully satisfied with the workman. The management was giving normal legal facility to the workman; the workman alongwith his co ID No. 286/08 Page 2 out of 15 workmen when demanded the legal facilities from the management, the management got annoyed and suddenly terminated by the management on 29.7.2002 without giving any notice, without making the payment for the month of June and 29 days of July, 2002 and no opportunity was given to the workman to defend his service. The workman made a complaint to labour department. He also sent a demand notice to the management which was neither replied nor complied. The management has also illegally detained the original documents of the workman. The workman is without any job since his termination and could not find any job despite his best efforts. The workman prays for reinstatement with continuity of service and back wages. 4. Notice of the reference was issued to managements after filing of statement of claim. 5. The management no. 1 appear and contested the claim by filing a written statement. 6. The management no. 2 could not be served. Umpteen number of efforts were made vide order dated 21.2.2006, 22.9.2006, 21.11.2006, 5.12.2006, 8.1.2007, 4.4.2007, 19.5.2007 and 13.7.2007. After exhausting efforts for serving the management no. 2 through process server as well as through registered post, my Ld. Predecessor directed on 13.7.2007 to serve the management no. 2 by affixation. On 17.8.2007 my Ld. Predecessor observed that management no. 2 was served. The management no. 2 did not appear despite service. 7. The management no. 1 has contested the claim by filing a ID No. 286/08 Page 3 out of 15 written statement stating that management no. 1 is not an industry within the meaning of [SECTION] of the [ACT]. The relationship of employer and employee has been denied. It was stated that the claimant was not their employee and was the employee of Respondent no. 2 and it is admitted that the workman
was drawing the salary from Respondent no. 2 and worked under the control and supervision of Respondent no. 2.
8. The nongainful employment of the workman was also challenged as a false plea. It was prayed that claim be dismissed.
9. No rejoinder was filed by the workman to the written statement of management no. 1.
10. On the pleadings of the parties, on 15.07.2005, following issues were framed :
1. As per terms of reference
2. Relief
11. Further on 21.4.2006 following additional issues were framed : Issue No. 3 : Whether employer & employee relationship ever existed between the claimant and the respondent no. 1?
Issue no. 4 : whether the respondent no.
1 is an Industry under the provision of [SECTION] of the [ACT]?
12. The workman has examined himself as WW1 in support of his claim and relied upon documents from Ex. WW1/1 to Ex. WW1/2. He was cross examined by the AR for the Management.
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13. The management has examined MW1 Sh. [ENTITY], Assistant Secretary with the Management in support of his case. He was also cross examined by AR for the workman at length.
14. I have heard Sh. [ENTITY] AR for the workman and Sh. [ENTITY], AR for the Management.
15. My findings on the issues are as under :
16. I will take up the issues in the order 4, 3, 1 and 2. ISSUE NO. 4: Whether the respondent no. 1 is an industry under the provisions of [SECTION] of the [ACT]?
17. The onus of this issue has been on the management no. 1.
18. Whether an establishment is an industry or not is a mixed question of law and fact. The definition of the term industry came for interpretation in the celebrated case of [PRECEDENT].
19. The definition of industry is very wide and all encompassing. As held in the case of Bangalore Water Supply (supra) "all industries are organized, systematic activity. Charitable adventures which do not possess this feature, of course are not industries."
20. Thus what is exempted from the definition of industry are charitable or philanthropic activities.
21. On the factual aspect the management no. 1 has not even given a suggestion to the workman that it is not an industry. However, it is not the admission or denial of the workman that would veil the management no. 2 with the definition. The management can with independent evidence show that it does not come within the term ID No. 286/08 Page 5 out of 15 'industry' or come within the purview of exceptions to the term.
22. The only statement that is made on this aspect by the MW1 is that 'the management no. 1 is not carrying out any activities of its own and it is merely a body created to protect the interest of the newspaper industry and it has no business of its own.' led any evidence worth the name on this issue.
23. Even talking the above statement at its face value does not take away the management no. 1 out of the purview of the term 'industry' within the meaning of industrial jurisprudence. Infact, no evidence has been brought on record to establish that the management is not an industry, except the bald statement of MW1.
24. Thus the onus of this issue is not discharged by the management no. 1. The finding on this issue is therefore returned against the management no. 1.
ISSUE NO. 3: Whether employer and employee relationship ever existed between the claimant and the respondent no. 1?
25. I am dealing with issue no.3 first as it goes to the root of the matter. Subsistence or otherwise of the relationship of employer and employee is the genesis of the claim.
26. In [PRECEDENT] it has been held:
"The prima facie test for the determination of the employer and employee relationship between the employer and employee is the existence of right in the employer to supervise ID No. 286/08 Page 6 out of 15 and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work."
27. In [PRECEDENT] Hon'ble Supreme Court of India has held as under :
"Determination of the vexed questions as to whether a contract is a contract of service or contract for service and whether the concerned employees are employees of the contractors has never been an easy task. No decision of this Court has laid down any hard and fast rule nor it is possible to do so. The question in each case has to be answered having regard to the fact involved therein. No single test be it control test, be it organisation or any other test has been held to be the determinative factor for determining the jural relationship of employer and employee."
28. A contract of service implies a contract whereby a party undertakes to render services, e.g. professional or technical services, to or for other in performance of which he is not subject to detailed directions and control. A contract of service implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance.
ID No. 286/08 Page 7 out of 15 The judgments of [PRECEDENT] and [PRECEDENT] are notable on this aspect of the law.
29. The management in the present case has stated that it was taking the services of a Contractor i.e. Management no. 2 and any employer employee relationship subsists only between the workman and Management no. 2.
30. The onus to prove the employeremployee relationship is on the propounder i.e. the workman.
31. Workman has examined himself as WW1. He has tendered in his evidence two documents. Ex. WW1/1 is a copy of the demand notice addressed to both the managements. Ex. WW1/2 is the statement of claim before the Assistant Labour Commissioner.
32. WW1 has stated in his crossexamination that he does not know Respondent no. 2 i.e [ENTITY] (i.e. the management no.
2) since 1999.
33. The workman in his statement of claim before the Assistant Labour Commissioner has taken a stand that the management has not obtained any licence for getting the work done through a Contractor and similarly the Contractor is also not a licenced. In the said document Ex. WW1/2, the workman has made the Contractor as Respondent No. 2. Similar array of parties has been mentioned in the statement of claim before the Court. However, the workman has not mentioned the facts which he had pleaded in Ex. WW1/2.
34. In [PRECEDENT] [PRECEDENT] It has been held that merely because licence is not taken by Contractor employees could not claim to get their services regularised under principal employer and there can be no relationship of employer and employee between contract labourers and the principal employer. The liability of principal employer is only to pay contractual amount to the Contractor.
35. WW1 has admitted that he was not issued any appointment letter issued by Indian Newspaper Society (the management no. 2). He has denied the suggestion that since he was not an employee of Indian Newspaper Society (the management no. 2) he was not issued any appointment letter. He denied the suggestion that his wages were paid by management no. 2 and also that his services were not terminated by management no. 1 as he was not its employee.
36. WW1 has also admitted that he did not sent any demand notice to the management no. 1. This also shows that his claim is misconceived. Of course, it is not mandatory to send a demand notice and not a condition precedent for raising an industrial dispute.
37. The workman as WW1 was read over para 2 of his affidavit Ex. WW1/A but he stated that he does not understand the same.
38. Infact, the testimony of the workman in his examination in chief contained in affidavit Ex. WW1/A and his crossexamination is diametrically opposite. There is inherent contradiction in the statement of claim filed before this Court as well as the statement of claim filed before the Assistant Labour Commissioner which is Ex.
ID No. 286/08 Page 9 out of 15 WW1/2. The workman has propounded in his examination in chief that the management no. 1 was the Principal Employer and the management no. 2 was the contractor supplying manpower to the management no. 1. However, he took a 'U' turn in his cross examination stating that he does not know Respondent no. 2. Therefore, because of inherent contradictions between his own statement and Ex. WW1/2 the witness is unworthy of reliance on the aspect of employer employee relationship. There is nothing but self serving statement of the witness. He has also admitted that he was not issued any appointment letter by the management no. 1.
39. In [PRECEDENT] it has been held that a party cannot be permitted to go beyond his admission and this principle applies to industrial adjudication also. Therefore, the workman cannot be permitted to back track or retrace his steps.
40. The testimony of MW1 on the aspect of nonexistence of the employer and employee relationship visvis the claimant/workman and the management no. 1 could not be impugned despite extensive crossexamination. MW1 proved the agreement with the management no. 2 as Ex. MW1/W1. He stated that the management no. 1 never made the payment to the worker, it was made to the contractor.
41. MW1 stated that the management no. 1 never received any demand notice from the workman. The workman though tendered a demand notice as WW1/1 which bears the name of the management no. 1 as one of the addressee, has not tendered in evidence any ID No. 286/08 Page 10 out of 15 postal receipt or proof of service of the same to the management no. 1.
42. The documents filed by the management no. 1 namely Mark 'A' to Mark 'O' (Collectively) show that at any point of time the maximum manpower supplied by the management no. 2 to the management no. 1 was eighteen i.e. always below twenty as under: Housekeepers 12 nos.
Supervisor 01 no. Electrician 02 nos. Plumber 01 no. Lift operator 01 no. [ENTITY] 01 no. Total Employees 18 nos.
43. As such there was no imperative on the management to obtain a licence prior to engaging contract labour. Thus the rigors of the [ACT] are not attracted against the management no. 1.
44. The workman has not alleged that the contract between the management no. 1 and 2 is a sham or camouflage. No evidence has also been lead on this aspect. The entire evidence is the self serving statement of the workman in which he has taken U turn from his own stand in the claim before the Assistant Labour Commissioner. It has been held in [PRECEDENT] that when no contention is raised that the contract with Contractor was sham and nominal, the Court cannot assume that the Contract labour system was only a camouflage direct absorption. In the case of [PRECEDENT] it has been held that the ID No. 286/08 Page 11 out of 15 [ACT] does not contemplate absorption of Contract Labour by the principal labour. It is also held that engagement by Contractor does not create relationship of Master and Servant between Contractor Labour and Principal Employer.
45. The collective reading of the evidence of the workman and the management no. 1 leads to the inference that the management no. 1 had contract with the management no. 2 to provide it the manpower. It had no choice to any particular person(s) to be deputed to perform services. It had no direct control and supervision over the manpower supplied except to see that the services were performed and in case of any complaint to seek redress from the management no. 2. There is nothing to suggest that the management no. 1 had any disciplinary or other control over the manpower supplied. Thus the essential ingredients to constitute the employeremployee relationship visvis the management no. 1 and the workman are conspicuous by their absence.
46. Thus the workman has failed to prove any relationship of employer and employee visvis the management no. 1. ISSUE NO. 1: AS PER TERMS OF REFERENCE
47. In view of my findings on the issue no. 3, there subsists no relationship of employer and employee visvis the management no. 1 and the workman. As such there is no question of termination of his services by the management no. 1.
48. The management no. 1 has been exparte. It has not ID No. 286/08 Page 12 out of 15 impugned the testimony of the workman. Therefore it is the employer of the management as this part of the evidence of WW1 has remained unchallanged and unrebutted. Umpteen efforts were made by this Court to serve the management no. 2 but it could not served by ordinary process as well as by the registered post. Ultimately it was served by affixation at its last known address.
49. Therefore the oral testimony of the workman visvis the management no. 2 has remained unimpugned. Therefore it is the management no. 2 which is the employer and is liable for the termination of the workman. There is nothing to suggest that the termination of the workman was in consonance with the cannons of law or specific provisions of the [ACT].
50. It is therefore held that the services of the workman have been terminated illegally and unjustifiably by the management no. 2, i.e. A.C.E. services.
RELIEF
51. The workman has claimed reinstatement with full back wages and continuity of service alongwith all other consequential benefits.
52. Workman's termination being illegal and unjustified he is liable to be reinstated in service with continuity of service and consequential benefits.
53. As regards back wages, the law is crystal clear that onus to prove that the workman was not gainfully employed is on the workman. There is a catena of case law on this aspect to mention few are the judgements of the Hon'ble Supreme Court of India in ID No. 286/08 Page 13 out of 15 [PRECEDENT]; [PRECEDENT].
54. Now the evidence in this case is to be appreciated to find out if the workman has discharged the initial onus of proof.
55. The workman has made only a statement in his prayer that he is unemployed till date and passing through very hard days with his family. Ignoring the technicalities it is treated as a pleading. In his affidavit in evidence the workman has stated that he looked after fresh job after his illegal termination but could not succeed and remained unemployed. The workman has here traveled beyond his pleadings.
56. Now the moot question is whether the above statement is sufficient to discharge the onus of proof on the part of the workman. Of course, there is no crossexamination on the part of the management no. 2 on this aspect, as it has remained exparte.
57. In [PRECEDENT] it has been held as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places material in that regard, the employer can bring on record materials to rebut the claim.
In the instant case, the respondent has ID No. 286/08 Page 14 out of 15 neither pleaded nor placed any material in that regard."
58. The present case also sails in the same boat. There is only a statement. No facts or material has been placed on record by the workman to discharge the onus except his own selfserving statement. The said statement is also omnibus and allencompassing in nature. It is more in the nature of an inference, and therefore can hardly be termed as evidence. It is the duty of parties to give evidence on facts and it is the prerogative of Courts to draw inferences from the same. Inferences or opinions given by the parties is no evidence in the eyes of law.
59. What efforts the workman had made to find an alternative job is within his personal and special knowledge. Under [SECTION] of the [ACT] the onus to prove such facts is on the person having such special knowledge. Thus the yoke of burden regarding what prospective employers he approached for job, what was the outcome, how he kept his body and soul together during all these years etc. are all facts which are within the personal knowledge of the workman. These facts are conspicuous by their absence in the evidence of the workman. WW1 has also admitted that he has shifted to his native place he earns Rs 50/ per day whenever he gets work and that he gets work for about 10 days in a month.
60. Thus the onus has not been discharged by the workman.
61. Award of back wages is discretionary. It is the duty of the court to take judicial notice of the common course of events. It is humanly impossible to believe that the workman, who was a ID No. 286/08 Page 15 out of 15 sweeper, would have carried out his living without any source of sustenance. Thus his being not gainfully employed is ruled out.
62. Therefore no back wages are awarded in the facts and circumstances of the present case.
63. To sum up, the award is passed thereby directing reinstatement of the workman service with the management no. 2 (A. C. E. Services) with continuity of service and consequential benefits. No back wages are awarded. The claim against the management no.1 (Indian Newspaper Society) is dismissed.
64. Award is passed accordingly.
65. A copy of the award be sent to Secretary (Labour) for necessary action and be also sent to server (www.delhicourts.nic.in). The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT DATED 31 JULY 2010 st ([ENTITY]) Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.
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