IN THE COURT OF SH. [ENTITY], PR[ACT]DING OFFICER LABOUR COURT, KARKARDOOMA COURTS, DELHI. ID No. 121/11 (Old ID No.232/03) IN THE MATTER BETWEEN: Sh. [ENTITY] & Eight Others C/o General Mazdoor Lal Jhanda Union, I441 Karampura, Delhi15 Workman VERSUS 1.M/s. [ENTITY] Head Office: Plot no.51, Furniture Block, Kirti Nagar, New Delhi15 2. M/s. [ENTITY] Plot no.5, Furniture Block, Kirti Nagar, New Delhi15 Management Date of Institution : 24.11.2003 Date of Judgment : 05.03.2014 A W A R D 1. The Secretary (Labour), Government of NCT of Delhi ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 1 out of 35 vide its order No. F.24(2448)/03/Lab./35964 dated 09.10.03 referred an industrial dispute of 9 workers namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] & [ENTITY] with the above mentioned managements to the Labour Court with the following terms of reference: " Whether the worker, Sh. [ENTITY] & 8 others as per AnnexureA, have received their full and final dues at their own or their services 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. Brief facts of the case as mentioned in claim are that the workman whose name, designation, date of appointment and last drawn wages, the details are as under: Sr. No. Name & Father's name Designation Date of appointment Salary 1. [ENTITY] S/o [ENTITY] 12.07.1993 2843/ 2. [ENTITY] S/o Ghirau Helper 20.07.1993 2419/ 3. [ENTITY] S/o [ENTITY] 10.01.1992 2843/ 4. [ENTITY] S/o [ENTITY] 10.01.1993 2843/ 5. [ENTITY] S/o [ENTITY] 07.01.1993 2843/ 6. [ENTITY] S/o [ENTITY] 04.05.1993 2843/ 7. [ENTITY] S/o [ENTITY] 01.10.1991 2843/ 8. [ENTITY] S/o [ENTITY] 01.07.1990 2843/ 9. [ENTITY] S/o [ENTITY] 12.08.1990 2843/ 3. Further it is stated that workman were working with the above named management. In order to deny the legal facilities/benefits to the workman, management prepared bogus ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 2 out of 35 companies with the following names and title and the management has taken the signatures of workmen on blank papers, blank vouchers, blank appointment letters etc. and copy of the same were not supplied to the workman and the management has also obtained signatures on blank stamp papers on the pretext of implementing PF & [ACT]. On 01.08.01, the management forcibly removed the workman, the management was having more than one thousand employees at that time and thus, the management has violated the provision of [SECTION] and despite the despite the efforts made by the Labour Department, the management did not take back the workmen on duty as they did not participate in the Conciliation Proceedings. 4. On the other hand in the written statement filed by the management no.1 (herein after called as M1) in which preliminary objection was taken that the reference is sent without application of mind as no company in the name of [ENTITY] exist at the address mentioned therein and the demand which were referred are not legally referable. Further it was alleged that there was no employer employee relationship between the management no.1 and the workmen. Therefore, no industrial ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 3 out of 35 dispute arise which required adjudication before this court. On merit, management no.1 denied the contents of claim petition as incorrect and alleged that the claimant were never employed by the management no.1 and therefore, the question of obtaining signatures by force does not arise. 5. The management no.2(herein after called as M2) also filed written statement and taken the same defence. 6. Thereafter application for amendment of written petition was filed by both the respondents/managements and same
were allowed by my Ld. Predecessor.
7. Thereafter, amended written statement was filed by the management no.1 in which in para no. 1A it is alleged that joint reference concerning number of establishments can be sent only u/[SECTION] of the [ACT] if Government is of opinion that dispute is of such a nature that other establishments are likely to affect. In para no.4A it was alleged that workman has himself stated that 16 establishments including management are fake establishment. Further it is stated that the claimants have made the present claim showing management no.1 and management no.2 as respondent but they had not stated who is real employer of the ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 4 out of 35 workman and even government while making the reference to this fact fact never bothered to check up and verify through its own agency as to who is the real employer out of both managements. On merit it is stated that both management are two different entities situated at the different premises having different owner. Hence the reference is bad in law. On merit contents of claim petition were denied. It was denied that management had ever done any manufacturing work or was having 1000 employees. Rest of the contents were the same as in the main written statements.
8. In their amended written statement management no2 also taken the same preliminary objection as taken by management no.1. Besides this in para no. 3A it is stated that workmen were never remain on the muster role of [ENTITY] and same was closed on May, 2001, and notice to this effect was sent to the Labour Department and to other department i.e. [ACT] & PF and the chief inspector of factories etc. and inspection was made by the labour inspector on the factory premises and despite inspection made by the labour inspector appropriate government made this reference in the mechanical manner. On merit all the contents of claim petition were denied. Further it is denied that ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 5 out of 35 workmen were their employee. It is also denied that management was having 1000 employee and it is stated that the establishment has only 93 number of employees on its roll on the date of the closure and all the workers who were employed by answering management were paid their dues in full and final settlement. It is stated that question of obtaining signatures of workmen blank papers does not arise as there was no employer employee relationship.
9. From the pleading of parties, vide order dt.12.04.06, the following issues were framed:
1. Whether there is no relationship of employer and employee between the parties.
2. Whether the workman is entitled to reinstatement with consequential benefits?
3. Relief.
However vide order dt. 21.12.2013 additional issue "in terms of reference" also framed.
10. In order to prove his case, workman [ENTITY] has examined himself as WW1 and led his evidence by way of ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 6 out of 35 affidavit Ex.WW1/A and he relied upon document EXWW1/1.
Workman [ENTITY] also examined himself as WW2 and led his evidence by way of affidavit Ex.WW2/A and relied upon document WW2/1 to WW2/3.
Workman [ENTITY] as WW3 and led his evidence by way of affidavit Ex.WW3/A and he relied upon document EXWW3/1.
Workman [ENTITY] as WW4 and led his evidence by way of affidavit Ex.WW4/A and he relied upon document EXWW4/1 and 2.
Workman [ENTITY] as WW5 and led his evidence by way of affidavit Ex.WW5/A and he relied upon document EXWW5/1.
11. Other workmen did not lead any evidence. As they stopped appearing.
12. On the other hand, in order to prove their case the management no.1 examined MW2 [ENTITY] who lead his evidence by way of affidavit Ex.MW2/A and management no.2 examined MW1 Mr. [ENTITY] who lead his evidence by way of affidavit Ex.MW1/A and also rely upon documents Ex.MW1/1 and mark MW2/2 to MW2/7 and also also examined ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 7 out of 35 MW3 [ENTITY], Social Security Officer, regional office, was also examined to prove the declaration form Ex.MW3/1 & MW3/2 with regard to the workman [ENTITY] and [ENTITY] and MW4 [ENTITY], official from labour department who produced conciliation file as EXMW4/1.
13. I have heard the arguments from Sh. [ENTITY], AR for workman and Sh. [ENTITY], AR for management no.1 and Sh. [ENTITY], AR for management no.2. My issuewise findings are as under.
Issue no.1
14. Before deciding the issue, I shall decide whether this court can decide the issue of employeremployee or not. It is argued by the Ld. AR for workmen since as per terms of reference issue of receiving the issue of full and final settlement dues at their own has been sent hence it presupposes the relationship of employer employee therefore now management cannot raised the said dispute and reference court cannot go beyond the terms of reference, therefore, this court cannot decide, the issue of employeremployee. It is further argued by Ld. AR that if management was aggrieved with the term of reference than they ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 8 out of 35 should challenged the same by way of writ petition. In support of his contention, Ld. AR for workmen has relied upon judgement of High Court Delhi Cloth and General Mills Co.vs Workman and Others (7) 394,AIR 1967 SC469, [PRECEDENT] and [PRECEDENT].
15. On the other hand Ld. ARM has argued that management no.2 has sent the reply during the conciliation proceedings and in which preliminary objection was raised that workmen were not employed by management at any time due to the said reason even [ENTITY] the Office Bearer of Union through whom were filed through claim before the conciliation officer has written letter of the Labour Court wherein he had specifically sought amendment in terms of reference by saying that the reference should be like this " Whether the workmen Sh. [ENTITY] and eight others as per annextureA have been terminated illegally and or justifiably by the management if so to what relief." Hence in these circumstances Government under the pressure of union has sent wrong issue therefore this court can decide the ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 9 out of 35 relationship of employeremployee between the parties.
16. There is no doubt that labour court cannot go beyond the term of reference as it is held in Judgement relied upon by Ld. AR for workman in all the findings the judgement of Delhi Cloth Mills (supra)relied upon by Ld.AR for workman. In this case it is held that "8. Proceeding in the order in which the arguments were addressed, we propose to deal with issues 3 and 4 first. Under [SECTION] of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring
1."the dispute or any matter appearing to be connected with, or relevant to the dispute, to a Tribunal for adjudication". Under [SECTION]
2."where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this Section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."
ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 10 out of 35
17. In my view where ever issue of illegal or unjustified termination is sent by the government it inherently involved the issue whether the workmen are the employees of the management or not. It would not make much difference to the situation even if with the issue of termination, issue of full and final payment by management has also been sent. In my view deciding the issue of relationship between employeremployee is necessary before deciding the issue of illegal termination or full and final payment.
18. Even otherwise, I am agree with the contention ofLd. AR for management that from the conciliation proceedings EX MW4/1 it is evident that management has never admitted during the proceedings that claimant were their employee. On perusal of internal noting/report of the labour department it is evident that the workmen have stated that management has refused to keep them on job by saying that they have given full and final payment to the workmen whereas the workmen have stated that they have not made any payment before terminating them. However, on perusal of the objection of management no.2 filed before conciliation officer,it is evident that management has raised never stated that they have made full & final payment to the workmen ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 11 out of 35 but management objection was that workmen were never their employee and it appear that due to said reason [ENTITY] the Authorized representative of workman has written to conciliation officer to amend the term of reference as mentioned above. The contention of Ld. AR for workman that the workmen has been filed u/[SECTION] of the [ACT], therefore, [ENTITY] who pursue their case on their behalf. Hence, in my view the [ENTITY] lal office bearer of the Labour Union through whom they filed the reference was authorized to write the said letter. Even otherwise since management has denied the relationship of employeremployee until and unless the issue is decided I failed to understands how the issues of full and final payment and termination can be decided. Further in my view since issue of employer employee is inherent in the the issue of termination and full and final payment that is why Conciliation officer did not separately made the same as term of reference. Hence in my view deciding the issue of relationship would not amount to going out of the term of reference. Further even otherwise since issue of employeremployee has been framed during proceeding and claimant have not challenged the framing of said issue hence it has attained finality and therefore now claimant ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 12 out of 35 cannot challenged that issue has been framed wrongly in violation of term of reference. This court is bound to answer all the issue framed. Hence I proceed to decide the issue.
19. Both the managements have denied in their written statement that they were one and same entity and also denied that the workman were their employee. The MW2 [ENTITY], appearing on behalf of management no.1 has deposed that there was no relationship of employeremployee between the claimant and management as the claimant were never being in the employment of the management. In the cross examination he has deposed that management is in trading export business. He denied that management export those garments manufactured by M2. However he stated that he do not know from where management were purchasing the garments. He denied the suggestion that name, designation salary and date of joining as mentioned in the claim petition are correct. He denied the suggestion that management no.1 did not produce the summons documents because if summon record would have been produced it would have proved the relationship of workman with management no.1 and the connection of management no.1 with management no.2. ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 13 out of 35 He denied that all the workman had worked for 240 days continuously with the management prior to termination.
20. The management no.2 in order to prove that claimants were not their employee has examined MW1 [ENTITY] by way of affidavit Ex.MW1/A and stated that he was manager with [ENTITY]( since it was closed w.e.f.31.05.01) and now he is the only employee left with the management and looking after the pending disputes. He further stated that [ENTITY] was engaged in the business of export of the garments. The management used to procured orders from the different buyers and after getting the same manufactured with the help of independent fabricators used to supply the finished goods to the establishment from who the order were being procured. He further stated that number of independent fabricators were engaged in the manufacturing activity who were specialized in their trade such as cutting of cloths, stitching and embroidery etc. These fabricators were working as independent contractor. The fabricators had their own work force and they were engaged and controlled by those fabricators. He further stated that the name of the establishments as mentioned in para no.3 of the statement of ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 14 out of 35 claim were in fact group of independent fabricators and were separate legal entity and had no concern with the management and the said establishment were duly registered under [ACT] and the workman working therein were duly covered with the provision of [ACT] and EPF. He further deposed that all the workmen on the roll of the management were paid their due wages and a full and final settlement was done with them and the Labour office, [ACT] & EPF and factory inspector, were intimated about the closure of establishment vide letter MarkMW1/1 which is letter issued from labour department dt.29.09.10, MW1/2, letter dt. 17.08.01 another letter marked as MW1/3, a letter dt.08.08.01, another letter dt.27.02.04, MW1/4 another document which bank receipt as MW1/5 dt.20.02.04, letter dt.28.01.03 to the office of the inspector of the factories and the letter dt.28.01.03 regarding information of closure marked as MW1/6 & 7. He further deposed that recently he came to know that the workmen were in the employment of M/s Stylish Fabricator and were duly covered by the provisions of [ACT] and PF. M/s Stylish Fabricator was a group of fabricator and was a separate legal entity and had no concern with the answering respondent/management. In his cross ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 15 out of 35 examination he denied that document mark MW2/2 to MW2/7 are false and fabricated. He admit that management is partnership firm of [ENTITY], [ENTITY] and [ENTITY]. The management was running export business. He admit that sample of ready made garments used to manufactured by in management. He admit that ready made garments which could not be manufactured by management used to be manufactured from other sources. He denied the suggestion that both management were one and same identity. He stated that he cannot admit or denied claimant worked with management from the date mentioned in para1 till 01.08.2001.15. Hence from the testimony of aforesaid management witnesses it is evident that both the managements have denied that workman were their employee or that they are one and same identity.
21. The burden to prove that relationship of employer employee exist between them and the management is upon workman. In [PRECEDENT], the Kerala High Court held that:
" the burden of proof being on the workmen ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 16 out of 35 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."
22. In [PRECEDENT] . the Supreme Court observed as follows: " However, applying general principles and on reading the (aforesaid) judgments, we find that 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 ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 17 out of 35 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."
23. 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 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. Hence from the aforesaid judgements it become amply clear that onus is on the claimant/ workman to prove employer employee relationship and that he remained in continuous service for ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 18 out of 35 240 days in preceding year prior to his termination.
25. In order to prove the relationship only workman [ENTITY], [ENTITY],[ENTITY], [ENTITY] and [ENTITY] lead their evidence. WW1 [ENTITY], in his evidence by way of affidavit Ex.WW1/A has stated that he was appointed on 10.01.92 by Sh. [ENTITY], on the post of 'Tailor' on the last drawn salary of Rs.2843/ with [ENTITY], plot no.5, furniture block, Kirti Nagar, New Delhi15. He also deposed that he was terminated from 01.08.01 after obtaining his signature on blank paper, voucher forcefully. He deposed that during service he worked under the supervisory control of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] (manager), [ENTITY] (manager), [ENTITY] (manager), [ENTITY] (Manager) and they were paid salary by [ENTITY] (Accountant). In his cross examination, he admitted that he do not have any document to show he was appointed by management no.1. Further he denied the suggestion he never worked with M2.
26. The WW2 to WW5 also deposed same facts in their examination in chief as well as cross examination as deposed by ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 19 out of 35 WW1 except about their date of appointment as well as salary.
27. Thus all the five workman in their evidence have categorically deposed that they were employed with M2 hence from their they were not the employee of M1.
28. In their evidence led by way of affidavits all the workman have specifically deposed that they were employed by management no2. But on perusal of the claim petition I found that it has not been mentioned under which management they were working and only it is stated that they were employed by managements. Hence there is contradiction in their claim and evidence. Further in para7 of their respective affidavits all the workman have deposed that during service he worked under the supervisory control of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] (manager), [ENTITY](manager), [ENTITY] (manager), [ENTITY] (Manager) and they were paid salary by [ENTITY] (Accountant). But they have not deposed the said fact in their claim petition hence same is an empowered, hence said portion of evidence is an improvement and cannot be relied upon. Further from the judgement mentioned above it is evident that even ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 20 out of 35 otherwise self evidence is not sufficient to proved workmen were working employee of managements.
29. The another contention of AR for workman that, MW1 [ENTITY], had stated that he can not admit or deny asto whether the claimant has continuously worked with the management since the date of appointment as mentioned in para no.1 of the statement of claim till date of termination 13.01.01, therefore, non denial of MW1 prove that workmen were employee of M2. But I am not agree with the said contention. The MW1 has avoided to give the answer but merely on this ground it cannot be presume workman were employees of management no.2. It is always for the workmen to prove by leading the positive cogent evidence that he was employing with the management and that positive evidence is appointment letter, agreement between parties, salary record or attendance register.
30. As far as documentary evidence is concerned WW1 is concerned he has relied upon documents WW1/1 which is a photocopy of application for leave filed to the M2. The workman in the crossexamined has denied that same is a forged document. The workman has no where mentioned in the evidence lead by way ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 21 out of 35 of affidavit that he has applied for leave before the M1 from 23.04.98 to 23.06.1998. Hence, the said leave application has only been tendered but its contents had not been proved according to [ACT]. Further same is a photocopy of the leave application and workman has failed to explain why original of the same has not been filed. No application has been filed with the management to summon the said leave application. The said application bears name of M2, but it has address of management no1. Witness himself deposed in the affidavit that he was employed with management no.2 then why the application is filed at the address of Management no.1. Original of the same has not been produced. Hence, the leave application has not been proved. Witness has not deposed who has signed on the said leave application as receiver of the same. Hence, I do not find the same authentic and held that merely on the basis of the photo copy of the leave application workman has failed to prove that he was the employee of the management.
31. WW2 [ENTITY] has proved Ex.WW2/1 to WW2/3 and WW3 [ENTITY] has proved document WW3/1 which are letters addressed to the workmen sent at the address of M2. WW4 ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 22 out of 35 [ENTITY] has proved News Paper and Post card EXWW4/1 and2 respectively which was sent to him at the address of M2 and but Ld. AR for the workman have fairly conceded that from the said letter it is not proved that the workmen were working with the management M/s [ENTITY]. Hence, workmen have failed to proved on record any documentary evidence to prove that they were the employee of management no. 1 or management no.2 or that they are one and same entity. The another contention of AR for workman that, MW1 [ENTITY], had stated that " he can not admit or deny as to whether the claimant has continuously worked with the management since the date of appointment as mentioned in para no.1 of the statement of claim till date of termination 13.01.01, therefore, non denial of MW1 prove that workmen were employee of M2. But I am not agree with the said contention. The MW1 has avoided to give the answer but merely on this ground it cannot be presume workman were employees of management no.2. It is always for the workmen to prove by leading the positive cogent evidence that he was employing with the management and that positive evidence is appointment letter, agreement between parties, ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 23 out of 35 salary record or attendance register.
32. The contention of Ld. AR for the workman that from the order of regional [ENTITY] dt. 23.02.2005 to deposit the PF amounts of workers as the PF commissioner came to the conclusion on the basis of inspection conducted by the enforcement officers that M/s [ENTITY] has 938 employees and the list of employees include name of workmen it is proved that more than one thousand workmen were working with the management i.e. [ENTITY] premises at 51, Furniture Block, Kirti Nagar, Industrial Area, Delhi as per the order passed by the P.F. Regional Commissioner, list of the employees as per the PF Regional Commissioner's order including name of the workmen also. Therefore, it is proved that the workmen are the employee of management. On the other hand Ld. AR for management has argued that the said order of the PF Department was challenged before the Hon'ble High Court as same was passed on wrong facts. Further in the said case 5 brothers have filed the application for implead them as party which was allowed by the PF /appellate authority and PF department filed an appeal against the said order and Hon'ble ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 24 out of 35 High Court vide order dt.02.01.14, dismissed the said application of the [ENTITY]. Since the order of the PF department is challenged before the appellate authority and appeal is still pending, therefore, anything adverse cannot be read against the managements by the order of the [ENTITY]. Hence it is not proved that the workers who is listed in the [ENTITY]'s order are the employee of management or they are one and same identity. Hence, workman have failed to prove on record any cogent documentary evidence to prove that they were the employee of management no.1 or management no.2 or that they are one and same entity.
33. The contention of Ld. AR for workmen that workman have filed an application with the management to produce the document and despite the fact court allowed the said application, management has failed to produce the document, therefore, adverse inference be drawn against the management is not tenable. The workmen have sought for the production of muster roll, salary register, attendance register, balance sheets, vouchers, cash memo, day book, seniority list, partnership day through the said application. The said application has been allowed by my Ld. ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 25 out of 35 Predecessor on 06.07.10 and the management was directed to produce the aforesaid documents and it is admitted that management has not produced the same. But in my view on this ground no adverse inference can be drawn against the management because the workmen in their pleading or testimony had no where stated that they used to sign on any attendance register, or salary register or they have not stated that any appointment/ termination letter was ever issued to them or there name was in the muster role of management. Therefore, if the workmen have not signed on attendance register or salary register/wage register or had not claimed that muster role maintain by management contain their name, no purpose would have been served if the management had produced the said documents. Hence in the these circumstances no adverse inference can be drawn against management. As far as judgement relied upon by Ld AR for workman i.e.As far as judgement relied upon by Ld AR for workman i.e. [PRECEDENT] is concerned undoubtedly in this case our own High Court held as under: "14. Engagement and appointment in service can be ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 26 out of 35 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, 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 can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. 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 favor of the workman. "
34. There is no dispute to said observation of High Court. But in this case itself it is held that initial burden is always on the workman to prove the relationship. Relevant para is reproduced as below "11. In this behalf, it was only if the respondent had discharged the onus and burden of proof cast on him and had placed some material on record to indicate that he had been employed by the petitioner that the petitioner would have been required to displace ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 27 out of 35 the case set up by the respondent by leading positive evidence.
In [PRECEDENT] "[PRECEDENT] it is held that:-
"23. An adverse inference, therefore, was drawn for non- production of the attendance register alone, and not for non- production of the wage-slips. Reference to 'other relevant documents' must be held to be vague as the Appellant herein had not been called upon to produce any other document for the said purpose.
24. It appears that the learned Tribunal considered the matter solely from the angle that the Appellant has failed to prove its plea of abandonment of service by the Respondents.
25.The question came up for consideration before this Court recently in [ENTITY] (supra) wherein it was held :
"15 A Court of Law even in a case where provisions of the [ACT] apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non- production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds."
ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 28 out of 35
26. Referring to the decision of this Court in [PRECEDENT], this Court observed :
"19. Furthermore a party in order to get benefit of the provisions contained in [SECTION] of the [ACT] must place some evidence in support of this case. Here the Respondent failed to do so."
27.In [ENTITY] (supra), this Court observed :
"11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously." Hence, in these circumstances, I held that merely by non production of aforesaid documents no adverse inference can be drawn and even adverse inference is drawn same is not sufficient to presume that the claimants were employee of management.
41. Even other wise in view of the positive documentary evidence produced by management through the testimony of MW3 who proved the [ACT] declaration form of workmen which proved workman were employee of different establishment no adverse can be drawn against the management merely because management did not produced the documents as demanded by workman.
35. As stated above workmen have failed to prove on any appointment letter, attendance record, muster role, PF or salary record, etc, to prove they are the employee of either management ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 29 out of 35 no.1 or 2. They are not the daily wager that could not get any document to proved their employment when they have worked for so long. Hence they have failed to lead any cogent evidence except their self affidavit that they are the employee of management.
36. As stated above workmen have failed to prove on any appointment letter, attendance record, muster role, PF or salary record, etc., to prove they are the employee of either management no.1 or 2.They are not the daily wager that could not get any document to proved their employment when they have worked for so long. I am not agree with the contention of Ld AR for workman that since workmen have categorically deposed in their testimony that signatures of the workmen were obtained on blank paper and they have not been provided copies of the documents hence workmen are not in possession of the documents. The workman have failed to explained why they did not made any complaint prior to filing of this case that there signature has been taken on blank papers or that they have not been provided any legal facilities which make their testimony unreliable. Hence they have failed to lead any cogent evidence except their self affidavit that they are the employee of management.
ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 30 out of 35
37. On the other hand from the documents MW3/1 to MW3/2 declaration form of workmen [ENTITY] and [ENTITY] filed in [ACT] it is proved that they were employee of the Sanjeev Fabricator, and Ramaiyaa International situated at Plot no. 5, and 55, Kirti Nagar, New Delhi15 respectively which is one of the firms whose name has been taken in para 3 of the claim petition of the workmen. No suggestion has been given to the witness that they have not been availing facilities with [ACT]. On perusal of [ACT] declaration form EX MW3/1 which pertain to workman [ENTITY] it is evident that same was filed on 01.11.1996 in which his date of appointment is mentioned as 02.09.1996 and same bears particular of native residential address and his dependant name and signed by the workman. No suggestion has been given that his signature are forged. Similarly [ACT] declaration form EX MW3/2 which pertain to workman [ENTITY] it is evident that same was filed on 01.11.1996 in which his date of appointment is mentioned as 03.01. 1996 and same bears particular of native residential address and his dependant name. Workmen have not given any suggestion that they were not availing [ACT] facilities. These documents are of period much earlier ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 31 out of 35 than when they are allegedly terminated. The workmen have failed to led any evidence to prove that Sanjeev Fabricator and Ramya Garments are bogus firm created by management no.1 & 2.
38. Further the workmen have failed to led any cogent and reliable evidence to proved that M1 and M2 are one and same identity. Merely because both management used the name Sewa International it cannot be said that they are same identity. The address of both the firm are different as management no.1 was situated at plot no.51 Kirti Nagar whereas M2 at plot no.5 Kirti Nagar. Further management no.2 through the testimony of MW1 [ENTITY] has proved that M/s [ENTITY] was engaged in the business of export of readymade garments and they used to procure orders from different buyers and after getting the same manufactured with the help of independent fabricators used to supply the finished goods to the establishment from whom the orders were being procured. A number of independent fabricators were engaged in the manufacturing activity who were specialized in their trade such as cutting of clothes, stitching and embroidery etc. The fabricators had their own work force and they were engaged and controlled by those ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 32 out of 35 fabricators. Further he has categorically deposed that the name of the establishment as mentioned in para 3 of the statement of claim were in fact group of independent fabricators and were separate legal entity and had no concern with them. Nothing much have come out in the cross examination MW1 to disbelieve his testimony. Undoubtedly the management no.2 have not filed any documents to prove their contract but merely on this ground it cannot be presume that fabricators whose name are mentioned in the para1 of claim petition were bogus firm created by respondents. Onus was on the workmen to proved the same but they have failed to lead any cogent and reliable evidence in this regard.
39. Hence, keeping in view of the aforesaid facts and circumstances, I held that the workmen [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have failed to prove that they were employee of either of the management no.1 or 2. As far as other workmen are concerned is since they have not lead any evidence they have also failed to prove they are employee of either management no.1 or 2. Issue no1 is decided against the workman.
Additional issue and Issue no.2 ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 33 out of 35
40. Neither the workmen have claimed in their claim petition or in their evidences that management given their full and final payment nor both the management have claimed either in their respective written statements or their witnesses have deposed that they made full and final payment to claimant therefore no question of making full and final payment arise. Further in view of my finding of issue no1 that workmen have failed to prove the employeremployee relationship between them and management hence no question of illegal or unjustified termination by managements arise and accordingly I held that workman are not entitle to reinstatement. Additional issue and issue no.2 decided accordingly.
RELIEF
41. In view of my finding of issue no1and additional issue I held that since there is no employer employee relationship between claimant and M1 and claimant and M2 therefore workman are not entitle to any relief. Hence his claim petition is dismissed. Reference is answered accordingly.
42. Copy of the award be sent to the Secretary (Labour) Government of National Capital Territory of Delhi for necessary ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 34 out of 35 instruction. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room. Announced in the Open Court On this 5th March, 2014 ([ENTITY]) Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
ID No. 121/11 [ENTITY] & 8 Ors. Vs. M/s [ENTITY] Page No. 35 out of 35