Page numbers IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS: SHAHDARA : DELHI ID NO. 1001/2006 Date of Institution : 23.03.2004 Award Reserved : 04.02.2008 Date of Award : 20.02.2008 BETWEEN SH. DINESH CHAUHAN, S/O SH. NARENDER CHAUHAN R/O GALI NO.30B, SWANTATRA NAGAR, NARELA, DELHI110040. AND M/s SHANTI CONSTRUCTION COMPANY 208, SATHI APARTMENT, PLOT NO.18, ROHINI, NEW DELHI110005. AWARD 1.
"Labour Court is meant for welfare of the labourers. If Labour Courts under that law waste their time in holding that the doctors and engineers are labourers and deciding their claims, it will be an unfortunate state of affairs" ([ENTITY] s/o [ENTITY] and The commissioner, Revenue Division, Amravati 1996 (1) LLJ 55) It is a settled law that for being covered under the umbrella of the [ACT] one must be a Page numbers workman as defined under [SECTION] of the Act. The principle question that arises in this case is whether the claimant, who is a civil engineer is a 'workman'. If it is held that he is a workman then it is to be examined whether termination of his services is contrary to law. The other question which arises consequently is to what amount of back wages he is entitled to.
2. A claim was filed under [SECTION] of the [ACT] (hereinafter called the Act) by the claimant on the following facts:
He joined the management as 'Civil Engineer' 04.12.2002 at the salary of Rs.5,000/ per month. Management is engaged in the business of construction of buildings at different states on contract basis. Claimant was working at Narela site of the management. Other Civil Engineers having same nature of work were paid Rs.10,000/ per month by the management and the claimant was discriminated against. He requested the management to pay him equal salary like Page numbers other civil engineers or other facilities such as PF and ESI contributions, leave, earned wages, bonus. On this, the management removed him from service on 20.08.2003. Management did not pay him his earned wages from 01.07.2003 to 20.08.2003. He had completed more than 240 days of continuous service. So termination of his employment is unlawful. Management has employed more than 200 skilled and unskilled workers but did not provide PF and medical facilities to anybody. He sent demand notice to the management on 15.10.2003 for his reinstatement but management did not reply to the same. On 11.09.2003 he was forced to sign some papers regarding his full and final payment up to date. He refused to sign the same. He is unemployed since the date of termination of his services. 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 he is not a 'workman'. It is stated that management Page numbers receives contracts from big contractors and executes them by appointing small contractors. It is stated that the claimant was appointed a contractor to do construction work. It is denied that he was appointed as a Civil Engineer.
It is denied that there are other civil engineers who are paid Rs.10,000/ per month by the management and that the claimant was discriminated against. It is stated that the management company is a contractor and does construction work as per the specifications supplied by its clients. It is further pleaded that the clients of the management send their engineers to look after the construction so there is no need for the management to appoint any engineer. It is further pleaded that when the contract of the claimant came to an end he was paid his full and final contract amount. It is denied that he had completed 240 days of continuous service with it or that it withheld his wages w.e.f. 01.07.2003 to 20.08.2003. It is denied that the management has employed more than 200 workers. It is stated that the management is a subcontractor and has employed only 34 Page numbers accountants to look after the payment of its contractors from time to time. It is denied that the management terminated the services of the claimant. It is stated that there was no occasion for termination of employment of the claimant as he was never employed by the management.
4. Following issues were framed by my learned predecessor vide his order dated 10.08.2005 :
1. Whether the services of the workman were terminated illegally and / or unjustifiably by the management ?
2. Relief.
5. Claimant examined himself as WW1, [ENTITY] as WW2 and [ENTITY] as WW3 and thereafter closed his evidence. Management examined [ENTITY], its proprietor, as MW1 and thereafter closed its evidence.
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6. I have carefully perused the material available on the record and have heard authorized representatives for both sides.
7. Claimant has alleged that he was appointed by the management as a Civil Engineer on 04.12.2002 at a salary of Rs.5000/ per month. It is alleged that other civil engineers were paid Rs.10,000/ per month by the management so he was discriminated against and when he demanded equal wages management got annoyed and terminated his services on 20.08.2003 and also withheld his wages from 01.07.2003 to 20.08.2003. Management has denied the same and has alleged that the claimant worked as its contractor. It is also stated that the management does not appoint any engineer as the engineers are provided by its clients to look after the construction work so there was no question of payment of Rs.10,000/ per month as wages to any engineer.
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8. In [PRECEDENT] it was held as follows :
23 "The onus is on the employee to prove that he is a workman which has already been held in a decision reported in [PRECEDENT] (supra).
Therefore, Learned Tribunal was wrong on that question stating that onus lies on the company to prove that he is not a workman.
We have also found that in "Sonepat Co operative Sugar Mills Ltd. vs. Ajit singh"
(2005 Lab IC 1315) (supra) the Hon'ble Supreme Court held that jurisdiction of the Industrial Court to make an award would depend upon a finding whether the concerned employee is a workman or not."
9. Onus is on the claimant to prove that there existed relationship of master and servant between the parties.
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10. In [PRECEDENT] recently our own Hon'ble High Court discussed the issue of onus of proof of employment and 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 law of evidence that he who asserts must prove. Based on the rule of Roman Law - '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. The workman can discharge the same by leading cogent and reliable evidence in respect thereof which could be oral or documentary. In the even of nonavailability of the same, he can very well cause the same to he summoned from the Page numbers authorities concerned or the management itself and place the same before the industrial adjudicator."
11. To prove his status as workman of the management, claimant examined [ENTITY] as WW2. [ENTITY] was alleged to be coworker of the claimant. Management disputed the employment of [ENTITY] himself with it. In his cross examination [ENTITY] said:
"I joined the management as Supervisor in August 2002. I do not attach any proof of my appoitment except the photocopy of attendance register. It is correct that the copy of the said attendance register do not bear any seal or printing mark of the management. I have been removed by the management in August 2004. I have not filed any case against the management regarding illegal termination of my services."
12. Claimant further examined [ENTITY], his alleged co Page numbers worker, as WW3 who deposed that he worked with the management from August 2002 to December 2004. However, in his cross examination he stated as follows :
"I do not have any document to show my employment with the management as the same was not provided."
13. So, both the witnesses did not have any document to show their employment with the management. Their oral testimony that the claimant worked with the management as a 'workman' cannot prove the case of the claimant in absence of any other documentary evidence.
14. Management pleaded that it does not appoint any engineers and the engineers are provided by the company who gives it contract for construction. MW1 in his cross examination stated that the management did not appoint any civil engineer and that engineers were of DDA and Unity Infrastructure who granted it the contract.
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15. Claimant said in his cross examination :
"I worked as per the unity infrastructure construction drawings as provided by the DDA company. I worked myself with the colleague engineers according to drawings."
16. Claimant in para 2 of his affidavit stated that :
"The management co. usually provides me my salary on the first week of every month in cash thereby obtaining my signature on salary register without filling any amount of salary given to me."
17. The case of the management is that the claimant was appointed as a contractor and he was paid his full and final contract amount. Mangaement has placed on record its bank statements ExWW1/M1 and ExWW1/M2 and bank certificate ExMW1/1. Bank statement ExWW1/M1 shows payment of Rs.5,000/ to the claimant on 21.07.2003 vide cheque bearing no. 679195. Bank certificate ExMW1/1 reads that an amount of Rs.10,000/ was paid to the Page numbers claimant on 17.04.2003 by the management vide cheque bearing no.723085 dated 17.04.2003.
18. Claimant has alleged that he was paid his wages in the first week of every month. The aforesaid payments were made on 17.04.2003 and 21.07.2003. They were not paid in the first week of the month.
19. Authorized representative of the claimant put a suggestion to MW1 in his cross examination that these statements reflect payment of salary to the claimant. If the aforesaid two payments were on account of salary it is not explained as to why the same was paid on 21.072003 and 17.04.2003 whereas the case of the claimant is that his wages were paid in the first week of every month.
20. Claimant has alleged that his wages w.e.f. 01.07.2003 to 20.08.2003 were withheld. Bank Statement ExMW1/1 shows payment of Rs.5,000/ to the claimant on 21.07.2003. As per the Page numbers suggestion of authorized representative of the claimant put to MW1 in his cross examination the said statement reflected payment of wages to the claimant. If payment of wages was made on 21.07.2003 how claimant alleged that he was not paid anything for the month of July 2003. Why the said payment was made in the third week of July and what was the occasion for the payment has not been explained by the claimant.
21. So the claimant has not been able to prove his status as that of a 'workman' with the management. As such [SECTION] of the Act can not be invoked by him.
RELIEF
16. In view of the aforesaid claimant is not entitled to any relief. Appropriate government be informed. File be consigned to record room.
Announced in the open PRESIDING OFFICER court today. LABOUR COURT NO. XIII Date : 20.02.2008 KARKARDOOMA COURTS DELHI