Amrik Singh vs Govt. Of Nct Of Delhi & Anr.

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                             Judgment Reserved on: 16.05.2018
                              Date of Judgment: 27.06.2018

+                  WP (C) 3463/2017 & CM No. 15171/2017

        AMRIK SINGH                                 ..... Petitioner
                              Through: Mr.S.C. Kumar, Advocate.

                              versus

        GOVT. OF NCT OF DELHI & ANR.          ...Respondents
                      Through: Mr.P.C. Jha, Advocate for R-2.


        CORAM:
        HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. The petitioner in this writ petition has challenged the Award dated 27.08.2016 passed by the learned Presiding Officer, Labour Court-XVI, Karkardooma Courts, Delhi (in short „Industrial Adjudicator‟) in Old ID No. 09/15 (LIR No.2553/16).

2. The brief facts giving rise to file the present writ petition are that the respondent no.2/workman raised a direct industrial dispute against the petitioner/management claiming that he had joined as Salesman with the petitioner/management run by Sh. Harnam Singh, the father of the petitioner, in the year 1965; his services were made permanent in the year 1974; the management did not use to pay his entire salary on time; the WP (C) 3463/2017 Page 1 of 11 petitioner/management used to pay meager amount with the assurance that the balance shall be paid at the time of need; for the year 1993 to 1997 there were arrears of his dues for Rs.28,300/-; the petitioner/management had also for the subsequent period kept Rs.5,000/- and thus a total sum of Rs.33,300/- was still outstanding against the petitioner/management; his last salary was Rs.10,000/- per month; in the month of March, 2014 the respondent no.2/workman requested the petitioner/management to pay his outstanding amount which he refused and on 02.07.2014, the petitioner/management obtained his signatures on blank and printed papers/documents and warned him not to come on service from the next day i.e. 03.07.2014. The respondent no.2/workman got issued a legal notice dated 03.07.2014 upon the petitioner/management through his counsel, which was never replied. The respondent filed a statement of claim before the Conciliation Officer/Assistant Labour Commissioner (ALC), North District, Nimri Colony, Ashok Vihar, Delhi and despite notice the petitioner/management did not appear and a failure report dated 14.01.2015 was submitted by the Conciliation Officer.

3. In his written statement, the petitioner/management pleaded that the firm M/s.Harnam Singh Raghubir Singh, Sadar Bazar, Delhi-110006 with Sh. Amrik Singh as proprietor came into existence in the year 1993 and the respondent no.2/workman WP (C) 3463/2017 Page 2 of 11 was never in the employment as salesman or in any other capacity and as such the question of his termination did not arise. It is pleaded that the question of the respondent no.2 joining the management in the year 1965 does not arise as the management firm came into existence in the year 1993. It is further pleaded that the respondent no.2 was their customer who used to buy goods from them on wholesale rates both in cash and on credit and sell them in the open retail market and still a sum of Rs.5,000/- is outstanding against the respondent no.2 for the goods purchased by him.

4. The respondent no.2/workman filed rejoinder to the written statement denying the allegations of the petitioner/management and reaffirmed the averments made in his statement of claim.

5. On 02.11.2015, the Industrial Adjudicator framed the following issues, which are read as under: -

"i) Whether there exists any relationship of employer and employee between the parties? OPW

ii) Whether the present claim petition filed by the workman is maintainable?

iii) Relief."

6. In support of his case, the respondent no.2/workman examined himself as WW-1, whereas on behalf of the petitioner/management Sh. Amrik Singh, its proprietor, stepped in the witness box as MW-1.

7. The Industrial Adjudicator after appreciation of evidence concluded that there was relationship of employer and workman WP (C) 3463/2017 Page 3 of 11 between the parties and that the services of the workman/respondent No.2 were terminated illegally by the petitioner/management on 02.07.2014. However, in view of the age of the respondent no.2/workman to be 65 years as on the date of award, the Industrial Adjudicator instead of granting the relief of reinstatement, awarded him a compensation of Rs.3,50,000/- considering his last salary of Rs.10,000/- per month and long period of service.

8. It is argued by the learned counsel for the petitioner/management that there was no relationship of employer and workman between the parties. He argued that M/s. Harnam Singh Raghubir Singh was a partnership firm with Sh.Harnam Singh as one of its partners and on the death of Sh. Harnam Singh on 17.08.1993, the said firm stood dissolved and new firm M/s. Harnam Singh Raghubir Singh with the petitioner Amrik Singh as sole proprietor came into existence in December, 1993. He argued that the respondent no.2/workman was the employee of the old firm M/s.Harnam Singh Raghubir Singh. He urged that the respondent no.2/workman was only a customer of the firm of the petitioner and used to purchase goods both in cash or on credit and then sell the same in the retail market and still a sum of Rs.5,000/- was outstanding against the respondent no.2. He submitted that the respondent no.2/workman has raised the industrial dispute falsely with the malafide intention to avoid the payment of an outstanding WP (C) 3463/2017 Page 4 of 11 amount of Rs.5,000/-. He emphasized that automatic dissolution of the firm of M/s.Harnam Singh Raghubir Singh on 17.08.1993 on the death of Sh. Harnam Singh, did not make the respondent No.2 an employee of the new firm having the same name but as proprietary firm and Amrik Singh as its proprietor which came into existence in December, 1993. He argued that the respondent no.2 has not placed any material to show his attendance in the new proprietorship firm since December, 1993.

9. Learned counsel for the petitioner, during the course of the arguments, fairly admitted the copy of the letter of authorization dated 01.01.2014 issued by the petitioner Amrik Singh on the letter head of the firm to the Manager, Canara Bank, Delhi requesting him to deliver his FDR to the respondent no.2 Chander Dev Pant. However, he argued that this letter does not by itself prove the relationship of employer and workman between the parties.

10. He also admitted that the petitioner Amrik Singh has written the calculation on the sheet of paper Ex.MW-1/W-1 showing a balance amount of Rs.28,300/-.

11. He argued that merely the legal notice dated 03.07.2014 having not been replied by the petitioner shall not amount to an admission to treat the respondent no.2 as its employee.

12. Per contra, it is argued by the learned counsel for the respondent no.2 that the impugned award has been rendered by the WP (C) 3463/2017 Page 5 of 11 Industrial Adjudicator after due appreciation of evidence adduced by the parties and does not suffer from any illegality or infirmity.

13. I have heard learned counsel for the parties.

14. The respondent no.2/workman has claimed to have been working with the petitioner/management M/s. Harnam Singh Raghubir Singh since the year 1965 when the father of the petitioner namely Sh.Harnam Singh had employed him. The petitioner/management in its written statement has repeatedly sung the same song that the management came into existence in the year 1993 and the claim of the respondent no.2 having joined the petitioner/management in 1965 is apparently false and there was no relationship of employer and workman between the parties. However, in the writ petition the petitioner has admitted that the respondent no.2 was an employee of the old firm M/s. Harnam Singh Raghubir Singh. It is also pleaded that the petitioner Amrik Singh, who is the son of late Harnam Singh was never associated with the said firm of his father in any capacity. In the written statement and affidavit tendered in evidence it is pleaded that the new firm came into existence in the year 1993. He did not mention the month in which it came into existence. However, in the writ petition it is pleaded that the new firm M/s. Harnam Singh Raghubir Singh with Amrik Singh as sole proprietor came into existence in December, 1993.

15. In his cross-examination, MW-1 Amrik Singh has admitted that he knew that the respondent no.2 was working in the firm with his father but did not know since when he was working in their firm and to the contrary in the written statement and affidavit tendered in evidence the defence of the petitioner/management throughout was that the claim of the respondent no.2 having joined the management in 1965 is not possible as the management firm came into existence in the year 1993 with Amrik Singh as proprietor and there was no relationship of employer and workman between the parties.

16. Sh. Amrik Singh (MW-1), the proprietor of the petitioner/management has admitted in his cross-examination the copy of the letter Mark-E on their letter head by which the petitioner requested the Manager, Canara bank, Sadar Bazar, Delhi, to deliver his FDR to the respondent no.2. Notably, there is no immediate explanation by MW-1 Amrik Singh, the proprietor of the petitioner/management firm as to why he had made such authorization in favour of the respondent no.2. He failed to explain whether he had authorized the respondent no.2 to collect the FDR from Canara Bank, Sadar Bazar, Delhi in his capacity of his customer or as his workman. It is rightly observed by the Industrial Adjudicator that the FDR issued by the Bank in favour of its customer is an important document which can be handed over to a person of confidence. The people WP (C) 3463/2017 Page 7 of 11 in the managerial capacity do not have time, they generally depute their employees for such errand.

17. Further, MW-1 has also admitted his original handwriting on a slip of paper Ex.MW-1/W-1, the contents of which are as under:-

"93 18 21600 94 19 ½ 23400 95 2 25200 96 22 ½ 27000 97 24 28800 126000 Adv. 97700 BL 28300"

18. This calculation of the outstanding balance amount is for the period from 1993 to 1997 for a sum of Rs.1,26,000/- and after subtracting the payment of Rs.97,700/-, it shows a balance of Rs.28,300/-. The above said amount of the calculation is actually reflected in the statement of claim of the respondent No.2 wherein in Para 6, he has pleaded that there were dues of Rs.21,600/- in the year 1993, Rs.23,400/- in the year 1994, Rs.25,200/- in the year 1995, Rs.27,000/- in the year 1996 and Rs.28,800/- in the year 1997, totaling to Rs.1,26,000/-, out of which management had paid Rs.97,700/- leaving a balance of Rs.28,300/-. MW-1 has failed to explain the circumstances, immediately thereafter in his cross-examination, leading him to issue the calculation sheet of outstanding amount of Rs.28,300/- except saying that he cannot tell for whom the said WP (C) 3463/2017 Page 8 of 11 writing/account was prepared. Apparently the explanation offered by MW-1 in his cross-examination is evasive and not at all plausible. Even during the course of arguments, the learned counsel for the petitioner/management has failed to offer any explanation with regard to the calculation issued by the petitioner.

19. MW-1 has also admitted in his cross-examination that he had received the legal notice from the respondent no.2/workman but did not send the reply. He also admitted having received a notice from the office of the Labour Commissioner. The copy of the legal notice dated 03.07.2014 Ex.WW-1/3 is already on the record. It is well settled principle of law that having not replied and controverted the legal notice, may be treated as admission by the notice on account of principles of non- traverse. Reference can be given on a Division Bench Judgment of this court in the case of M/s Pradeep Oil Corporation Vs. Union of India 2012 SCC OnLine Del 573. The relevant para No.18 of the judgment reads as under:-

"18. We may also record that the Apex Court in Rakesh Kumar v. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 and in Hiralal Kapur v. Prabhu Choudhury (1988) 2 SCC 172 has held that a categorical assertion by a landlord in legal notice if not replied to and controverted can be treated as an admission by the tenant. This principle applies to the present situation also. The appellant by non-traverse of the notice dated 27.12.2010 accepted the correctness thereof i.e. of termination of its rights be it WP (C) 3463/2017 Page 9 of 11 as a lessee or as a licencee. Once it is held that the rights of the appellant stand terminated, even if the appellant was to be put back into possession, it would only be for a short time till evicted in accordance with law."

20. The respondent no.2 has placed on record several inland letters (Ex.WW-1/6 (colly.)) having the impression of the postal stamps for the years 1969, 1991, 1992, 1994, 1995, 1997 and 2012 showing his address as "Chander Dev Pant C/o Harnam Singh Raghubir Singh, 5247/2, Gandhi Market, Sadar Bazar, Delhi-110006". It was possible for the respondent no.2/workman to receive those letters at the address of the petitioner/management only when he was working there. This has not been explained in any manner by the petitioner/management. Even during the course of the arguments, the learned counsel for the petitioner/management failed to offer any explanation whatsoever.

21. Hence, in the circumstances the only inference which can be drawn is that there was relationship of employer and workman between the petitioner and the respondent no.2. The respondent no.2 claimed that his services were terminated illegally by the petitioner/management on 02.07.2014 w.e.f. 03.07.2014 for which the respondent no.2 had immediately got issued a legal notice dated 03.07.2014 to the petitioner/management, which was admittedly received by them. The said notice went without any response. Admittedly, despite service of notice, the petitioner/management failed to appear and justify its action WP (C) 3463/2017 Page 10 of 11 against the respondent no.2 and in the circumstances, the Industrial Adjudicator has rightly concluded that the services of the respondent no.2/workman were illegally terminated by the petitioner/management on 02.07.2014.

22. Since at the time of impugned award, the respondent no.2 has already attained the age of 65 years and keeping in view the length of services of the respondent no.2 with the petitioner/management and his last drawn salary of Rs.10,000/- per month, the amount of lump sum compensation of Rs.3,50,000/- with interest as awarded by the Industrial Adjudicator in the facts and circumstances of the case is not at all excessive. I do not find any infirmity in the impugned award.

23. As a consequence, there is no merit in the writ petition. The writ petition is hereby dismissed with costs of Rs.25,000/- payable to Delhi High Court Advocates Welfare Trust by the petitioner. The writ petition along with the application, being CM No. 15171/2017 is dismissed.

24. A copy of the judgment be sent to the Secretary High Court Bar Association, Delhi.

25. Trial court record be sent back.

(VINOD GOEL) JUDGE JUNE 27, 2018 "shailendra"