Indoeuropa Trading Co. Pvt. Ltd. vs P.O. Labour And Anr.
2005 Latest Caselaw 850 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the Award dated 5th March, 2003, passed in I.D.No.159/94 by the Labour Court-VI, Delhi(in short the `Labour Court') in which reference for adjudication was made in the following terms:-

"Whether the services of Shri Subhash Chand Aggarwal have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The case of the respondent No.2/workman is that he was employed with the petitioner management since 17th August, 1992 as a Steno-Typist on a monthly salary of Rs.1500/- and his services were terminated on 3rd May, 1993 with effect from 4th May, 1993 by the Executive Director of the management. The said termination is said to be violative of Section 25-F of the Industrial Disputes Act, 1947(in short the `ID Act').

3. The case set up by the management in defense was that no relationship of employer and employee existed between the parties and respondent No.2 used to do casual occasional services as a professional free-lancer and had been paid for the same. Respondent No.2/workman appeared in support of his case and deposed his employment from 17th August, 1992 till termination on 3rd May, 1993 by Shri K.M. Singhvi, the Executive Director of the management. He also denied the suggestions in the cross-examination that he was not employed with the management. The management's witness MW2, Vedi Ram admitted in his cross-examination that he used to see the workman concerned sitting in the office of the management but did not know if he worked as a Steno-Typist in the said office. The evidence of the management's witness MW3, Ravi Sharma in his cross-examination is extracted below:-

"22 .1.2002

MW3, Sh. Ravi Sharma, (recalled for cross-examination).

On S/A

XXXXXXXX by Ld. AR of the workman.

I have studied up to 9th standard. I know a little bit of knowledge. I am aware about the contents of my affidavit. My affidavit Ex.MW3/A was prepared by the Adv., of the mgt. I had informed the said adv., about the contents which have to be incorporated in the affidavit. My name is Ravi Lal Sharma. I know the workman concerned present in the court. I had seen the workman concerned for the first time in the office of the mgt. in September, 92. Lastly I saw him in May, 1999. In the year, 1992 7/8 employees used to work in the office. It is correct that the workman also used to work in the office in 1992. It is correct that the workman concerned used to do the work of a steno-typist as also the dispatch work. It is correct that before the termination of workman's services, workman used to work continuously under the mgt. It is wrong to suggest that I have deposed falsely.

RO&AC                               (P.K.SAXENA)
 

                         POLC:VI
 

      22.1.02" 
 

On the basis of the aforesaid testimony in cross-examination of the management's own witness, MW-3, the Labour Court held that this supported and substantiated the claim of the workman, respondent No.2 herein. The management's witness MW1, Nand Kishore stated before the Labour Court in support of the respondent No.2's plea that all the employees have been given appointment letters and their names have been mentioned in the attendance register is concerned. This evidence of MW-1, Shri Nand Kishore has been taken into account by the Labour Court and is extracted as under:-

"MW1, Sh. Nand Kishore, S/o Sh. N.N. Kandpal, Age 48 years, R/o 9/1962, Kailash Nagar, Delhi 71.(recalled for cross-examination)

On S/A

I was appointed with the mgt. since 1972. In 1972, I was appointed in the factory of the mgt. at Okhla Industrial Estate, New Delhi-20. I was appointed as Astt. Manager. There were about 30-35 employees working with the mgt. I remained there till 1998 and thereafter, I was shifted to the address of the present mgt. functioning from Chandni Chowk. I was shifted to the present mgt. with continuity of service. I was given appointment letter by the mgt. There were about 7- 8 employees working with the mgt. in Chandni Chowk where I was shifted. I cannot tell the names of those employees. I do not know the concerned workman. I have not seen the workman concerned for the first time in the court today. I saw him for the first time in the court when this case was fixed for hearing. I do not remember the year when I saw the workman concerned for the first time in the court. Apart from seeing the workman concerned in the court, I never saw him elsewhere. In the year 92, I was in the employment with the mgt. and since then I have been continuing there. I never saw the workman concerned working with the mgt. in Chandni Chowk between Aug. 92 and may 93. I do not remember who used to do the dispatch work of the mgt. during the said period. It is wrong to suggest that the workman concerned used to do the dispatch work in the mgt. during the aforesaid period. I do not know who was the Stenographer employed by the mgt. during the said period. It is also wrong to suggest that the workman concerned used to do the work of Stenographer with the mgt during the aforesaid period. The account work of the mgt. used to be done by Sh. V.C. Jain in the part-time. I do not remember since when the said part-time accountant had been looking the work of the mgt. I do not remember if in the year 98 when I was shifted to Chandni Chowk office of the mgt., Accounts work of the mgt. was looked after by the said Sh. P.C. Jain. I cannot say when for the first time I noticed the Sh. V.C. Jain looking after the accounts work of the mgt. It is correct that the said Sh. V.C. Jain had been continuously looking after the work of the mgt. and was on the regular pay rolls of the mgt. It is correct that name of the said Sh. V.C. Jain does not find a mention in the register of the mgt. Vol. Since he was a part-time employee. The mgt. used to take part in the exhibitions. The mgt. did not participate in the exhibition held in the year 92. It is wrong to suggest that my statement that the mgt. did not participate in the exhibition held in Nov. 92 is incorrect. It is also wrong to suggest that S/Sh. Dinesh Jain, Anil Monga, Vedi Ram and Ravi Lal participated on behalf of the mgt. in the exhibition held in Nov. 92. It is also wrong to suggest that Sh. K.M. Singhvi, Executive Director of the mgt. also participated in the said exhibition held in Nov. 92. It is not in my notice if the mgt. ever made any payment to the workman concerned. I aware about the contents of my affidavit ex. MW1/A. It is all based on my personal knowledge and whatever is written there is correct. It is wrong to suggest that I have deposed falsely. It is wrong to suggest that the workman concerned had worked with the mgt. from Aug. 92 to first week of May 93."

On the basis of the above evidence, the Labour Court concluded that Shri V.C.Jain who was admitted to be regularly working with the petitioner/management, has not been mentioned in the attendance register. On the basis of the above finding the Labour Court disbelieved the version of the management that the names of all the employees of the management have been entered in the attendance register and consequently disbelieved the stand of the management on this issue.

4. In so far as the management's plea that the workman, i.e., respondent No.2 rendered free-lance service to it for which he was paid is concerned, it was found that this plea was falsified by the deposition of MW-3, Shri Ravi Sharma to the effect that he had continuously worked on the post of Steno-Typist under the management since September 1992 at least till May, 1993. Even otherwise the Labour Court disbelieved this stand of the management as it had not specified the period when respondent No.2 had worked as a freelancer nor was any documentary evidence to support the said plea of freelancing was produced by the management.

5. On the basis of the aforesaid finding the Labour Court concluded that the workman was in the continued employment of the petitioner from 17th August, 1992 till May, 1993 on the post of Steno-Typist and since admittedly the respondent No.2 had put in 240 days of service and, therefore, there was clear non-compliance of Section 25F of the ID Act, which was admittedly not followed in view of the stand taken by the petitioner management. Accordingly the reinstatement with full back wages as well as the continuity of service was directed by the impugned award challenged in this Court.

6. The learned counsel for the petitioner, Shri Munjal has sought to dislodge the above findings of fact by submitting that these finding could not be arrived at as the respondent No.2 had not produced any documentary evidence in support of his plea. The Labour Court had given adequate and substantial reasons for recording its findings which findings are based on appreciation of evidence and not amenable to interference under Article 226 of the Constitution. In any case the Labour Court rightly relied upon the evidence of management's own witness to arrive at the findings (a) that the respondent No.2 was continuously in employment since August, 1992 and was working regularly as a Steno-Typist (b) that the name of regular employee, Shri V.C. Jain did not find mention in the attendance register of the petitioner so as to contradict the stand of the petitioner that since all employees were reflected in its attendance register, non-mention of respondent No.2 in such a register falsified his claim.

7. The learned counsel for the petitioner sought to contest the aforesaid finding in relation to Shri V.C. Jain on the ground that he was deputed by the Chartered Accountant. No such plea has been taken even in the writ petition. In fact the evidence of MW-1, Shri Nand Kishore as extracted above clearly contradicted this plea inasmuch as MW-1 clearly stated that Shri V.C. Jain was regularly working with the petitioner management.

8. Accordingly there is no merit in the writ petition which is dismissed.