Delhi High Court
Zahoor Ahmad vs Deputy Labour Commissioner & Ors on 5 November, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th November, 2020
+ W.P.(C) 4441/2002
ZAHOOR AHMAD ..... Petitioner
Through: Ms. Anju Lal & Ms. Shalu Lal,
Advocates (M-9810430756)
versus
DEPUTY LABOUR COMMISSIONER & ORS ..... Respondents
Through: Ms. Urvi Mohan, Advocate for Mr.
Sanjoy Ghose, ASC, GNCTD
(M-7718992441).
Mr. Gulshan Chawla, Amicus Curiae
(M-9899737099).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in physical Court.
2. The present petition has been filed by one Mr. Zahoor Ahmad, who
claims to be the sole proprietor of M/s. Hans Cinema, challenging the
recovery certificate dated 13th June, 2002 by which recovery is sought to be
made to the tune of Rs.1,28,874/- towards the amount due to the Workman -
Mr. Madan Lal (since deceased) (hereinafter, "Workman").
3. M/s Vijay Cinema was operating from Khasra No.355, Min. Village
Malikpur Chhawni, G.T. Karnal Road, Azadpur, Delhi. The property belongs
to the Petitioner/other co-owners and was taken on rent by M/s Vijay Cinema
since 1975 by two partners. There was a reconstitution of the partnership in
1992. It became a partnership firm of Sapru's and Kapoor's Mr. Sudarshan
Kapoor, Mr. Vijay Kapoor, Mr. Manish Kapoor, Mr. R.S. Sapru and Mr.Dalip
Sapru. The Workman - Mr. Madan Lal was working in the cycle stand of M/s.
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By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
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Vijay Cinema since 1978 on a monthly salary of Rs.350/-. He originally filed
a claim in 1991 against M/s Vijay Cinema. In the said claim, which was
decided by the Presiding Officer, Labour Court I, Award dated 30 th August,
1996 was passed. The operative portion of the said Award is set out below:
"10. The claimant has deposed that he remained
unemployed since the day of his termination. It
being so, the workman is entitled to reinstatement
with full back wages. Accordingly, I hold the
workman entitled to reinstatement with full back
wages and continuity of services. The reference is
answered accordingly."
4. Pursuant to this award, back wages of Rs.43,000/- were admittedly
paid by M/s Vijay Cinema to the Workman, however, he was not reinstated.
5. In the meantime, the Petitioner sought eviction of M/s Vijay Cinema by
filing a suit for possession. The said suit came to be decreed on 27 th
September, 1996. In view of default by M/s Vijay Cinema in complying with
the compromise decree, an execution petition was filed in 1998. The
Petitioner got possession of the property on 21 st December, 1998. Since the
property was in a dilapidated condition, the Petitioner carried out repairs and
renovation. The license for the cinema hall had also expired and so the
Petitioner got a fresh license under Section 10 of the Cinematographic Act,
1952. The Petitioner then started running a cinema hall on the property under
the name of M/s Hans Cinema.
6. Once the Petitioner had commenced running M/s Hans Cinema, the
Workman pressed the claim for reinstatement against M/s. Hans Cinema. He
had arrayed both M/s Vijay Cinema and M/s Hans Cinema as the Defendants.
In the written statement filed by the Petitioner, dismissal of the claim was
sought on the ground that M/s Hans Cinema is not in any manner connected to
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
M/s Vijay Cinema and it did not take over the liabilities of the management of
M/s Vijay Cinema. This claim was dismissed by the Labour Court.
7. In 2001, a fresh claim under Section 33-C (2) of the Industrial Disputes
Act, 1947 (hereinafter, "ID Act") was filed seeking enforcement/execution of
the award dated 30th August, 1996 against M/s Hans Cinema. In this claim,
the Workman sought outstanding wages along with interest. In the written
statement to the claim under Section 33-C (2), the Petitioner denied that it had
any liability towards the Workman and reiterated its position that it had not
taken over the liabilities of M/s Vijay Cinema. Vide judgment dated 4th June,
2002, the said claim under Section 33-C (2) was dismissed by the Presiding
Officer, Labour Court-III.
8. However, the Petitioner thereafter, received a recovery notice for a sum
of Rs. 1,28,874/-. The same is reproduced as under:
"As per Order No. I.D. No. 543/91 dated 30.8.96
passed by the Labour Court, an amount of
Rs.1,28,874/- (Rupees One lac twenty eight
thousand eight hundred seventy four only) of the
workman Shri Madan Lal is outstanding against the
management of M/s Hans Cinema, G.T. Karnal
Road, Azadpur, Delhi-33.
The above mentioned amount is recoverable
under Section 33(C)(1) of Industrial Disputes Act,
1947 like Land Revenue. As there is no separate
account to deposit this amount, therefore this
amount may be paid to Sh. Madan Lal."
9. It is this recovery certificate which is under challenge in the present
petition.
10. The submission of Ms. Lal, ld. Counsel for the Petitioner is that when
the substantive execution against M/s. Hans Cinema is rejected, the impugned
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By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
order certificate is not sustainable. She submits that the management of M/s.
Vijay Cinema, who were at best the employers of the Workman, had no
connection with the Petitioner. Though the Petitioner started a cinema hall in
the same premises, it was a completely new establishment. In fact, a new EPF
number was also allotted to the Petitioner.
11. On the other hand, Mr. Chawla, ld. Amicus Curiae appearing for the
Workman submits that as per the documents which he has obtained from the
DDA's website, the Petitioner claims that M/s. Hans Cinema was formerly
known as M/s. Vijay Cinema and he also clearly claims in the said documents
that M/s. Vijay Cinema is now known as M/s. Hans Cinema. Ld. Amicus
Curiae also relies upon a media report wherein the Petitioner has given an
interview stating that his cinema hall was approved in 1987. As per him, these
two documents show that M/s. Vijay Cinema and M/s. Hans Cinema belong
to the Petitioner.
12. After hearing ld. Counsel for the parties, the question that arises is as to
whether the Workman had an employer-employee relationship with the
Petitioner. The facts, insofar as they relate to the suit for possession filed by
the Petitioner against the erstwhile management of M/s. Vijay Cinema, the
compromise decree arrived therein and the final execution of the warrants of
possession, are not in dispute. Clearly, the Petitioner had to resort to legal
proceedings to evict the erstwhile management of M/s. Vijay Cinema and to
seek possession of the property. When that is the situation and, admittedly,
the Workman was employed by M/s. Vijay Cinema, which was run by the
partnership firm of the Saprus and Kapoors, the said M/s. Vijay Cinema can
clearly not be said to have been run by the Petitioner.
13. The Petitioner may have sought renewal of the license or issuance of
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
the new cinema license in the same premises, however that would by itself not
establish an employer -employee relationship between the Petitioner and the
Workman. The Petitioner herein is the sole proprietor of M/s. Hans Cinema
which is a completely different entity. The name of the entity is also different.
This cinema is a sole proprietary concern whereas M/s. Vijay Cinema was a
partnership concern. Mere press clippings or a loosely worded application to
the DDA cannot be made to fasten liability upon the Petitioner in respect of
employees who were not employed by the Petitioner. Clearly, the original
award dated 30th August, 1996, which was passed against both M/s. Hans
Cinema and M/s. Vijay Cinema, is enforceable only against M/s. Vijay
Cinema and not against M/s. Hans Cinema, as is clear from the judgment
dated 4th June, 2002.
14. In the judgment dated 4th June, 2002, the clear finding is as under:
"12. Turning to the case in hand, I find that
management has totally denied the relationship of
employer and employee between the parties. The
workman has also admitted that he was working
with M/s Vinay Cinema. I also perused copy of
award No.543/91. It was also passed against M/s
Vijay Cinema. Management has also filed copy of
LCA No.19/00. A perusal thereof has shown that
workman has already filed similar application
against Sh R.S. Sapru and Sh S.K. Kapoor,
partners of Vijay Cinema. In the proceedings U/S
33C(2) of the Act, this court has no jurisdiction to
first decide whether there existed relationship of
employer and employee between the parties and
then proceed to compute the amount claimed by the
workman. The principles of law discussed
hereinabove are fully applicable to the facts of the
present case and in view thereof I am of the view
that application of workman U/S 33C(2) of the
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
workman is not maintainable. Therefore, this issue
is decided in favour of management and against the
workman."
15. This order has not been challenged and has attained finality. A perusal
of the above extract of the said order shows that the question as to whether an
employer-employee relationship existed at all, has been decided in favour of
M/s Hans Cinema i.e., the Petitioner. The enforcement of award dated 30 th
August, 1996 against M/s Hans Cinema has already been rejected by the
Labour Court. The judgment dated 4th June, 2002 has not been challenged and
has been accepted by the Workman. Thus, an indirect recovery proceeding for
executing the very same award dated 30th August, 1996 would be completely
impermissible. Moreover, reliance by the ld. Amicus Curiae on the
documents filed by the Petitioner with the DDA, which he has obtained from
the website of the DDA, wherein the Petitioner may have used the expression
'formerly known as M/s Vijay Cinema' cannot be read to mean that the
Petitioner has taken over the liability of M/s Vijay Cinema.
16. Clearly, the Petitioner had to resort to legal proceedings to obtain
possession of the property. Since, a cinema hall was already running in the
said location, he may have decided to start a cinema hall on his own, however,
that cannot imply that the Petitioner would have to bear the responsibility of
the workmen employed by the hitherto M/s Vijay Cinema. There exists no
privity whatsoever between the Petitioner and the Workman. The
employer-employee relationship cannot be stretched to the extent as is being
attempted in the present case where the Workman has never received any
salary from the Petitioner. He was clearly an employee of M/s Vijay Cinema.
The EPF authority's order relied upon by the ld. counsel for the Petitioner also
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.11.2020
21:43:34
makes it clear that M/s Hans Cinema is now registered afresh with the EPF
authority. Thus, the recovery proceedings are not tenable against the
Petitioner for enforcement of the award dated 30th August, 1996.
17. It is, therefore, clear that the original award dated 30 th August, 1996
was not enforceable against the Petitioner, who is the sole proprietor of M/s.
Hans Cinema as there is no employer-employee relationship between M/s
Hans Cinema and the Workman. In any event, the Workman has also passed
away during the pendency of these proceedings. The present petition was
filed in 2002 and has remained pending for whatsoever reasons for the last 18
years. The total recovery, which was directed in the present case was a sum of
Rs.1,28,874/-. The said recovery proceedings, which seek to recover the
amount in order to implement the award dated 30 th August, 1996 are,
accordingly, not tenable against the Petitioner.
18. At the initial stage, Rs.5,000/- was directed to be paid as litigation
expenses to the Workman vide order dated 26th July, 2002. However, there is
no clarity as to whether the said amount was paid or not. Considering the fact
that the matter has remained pending for many years, a sum of Rs.20,000/- is
directed to be paid to the widow of the Workman as litigation costs, by the
Petitioner by way of a demand draft within four weeks from today.
19. The petition is, accordingly, allowed in the above terms.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 5, 2020
Rahul/ T
(corrected and released on 9th November, 2020)
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:09.11.2020 21:17
