Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
ANTRIKSH CREDITS AND LEASING LTD ..... Petitioner
Through: Mr. Tarun Sharma with Ms.Akanksha Kapoor and Mr. Sahil Paul, Advs.
Through: Mr. Major Siya Ram, Advocate.
1. The petitioner has challenged the Award dated 18.09.2008 under Article 226 of the Constitution of India rendered by the learned Presiding Officer, Labour Court-II, Karkardooma Courts, Delhi (in brief “Industrial Adjudicator”) in I.D. No.365/2009 on making a reference by the Secretary, Labour, Government of NCT of Delhi on 07.10.2009 in the following terms:- “Whether the services of Sh. Vikram Kapoor 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?. 2018:DHC:2897
2. The respondent/workman alleged that he has been working with the petitioner management as a Field Worker at the salary of Rs.4,000/- per month since September, 1997. Since, he was demanding various benefits, the petitioner/management had illegally terminated his services on 28.03.1999 without any reason. On 01.04.1999 he had raised his disputes through the Union with the Labour Department. He also sent a complaint to the Police Station Karol Bagh, Delhi on 19.04.1999.
3. In its written statement the petitioner, inter alia, pleaded that there was no relationship of employer and workman between the parties and name of the respondent never existed on its muster roll. However, it is pleaded that the petitioner used to take the services of the property dealers, its agent and individuals who worked on commission basis and the basic understanding with these persons was that they would bring clients and buyers for the sale and purchase of the plots/land to them and if the deal was matured, they would be rewarded commission for the deal. It is also pleaded that the respondent has been working with some other organization as a full time employee.
4. In his rejoinder, the respondent pleaded that his attendance used to be marked in the Attendance Register by the Management. He has denied the allegations of the management and reaffirmed his averments made in his statement of claim.
5. In support of his case, the respondent examined himself as WW[1], apart from constable Ashok Kumar as WW[2] from Police Station Desh Bandhu Gupta Road, Delhi, Ms. Ajit Kaur, a former employee of the petitioner as WW[3] and Sh. Sushil Kumar, Special Assistant with Bank of Maharashtra, Karol Bagh, Delhi Branch as WW[4].
6. On the other hand, the petitioner has examined its Director Sh. Bhupender Singh as MW[1] and one property dealer Sh.Kuldeep Sehdev as MW[2].
7. After appreciating the evidence in detail, the Industrial Adjudicator came to the conclusion that the respondent has sufficiently discharged his burden of proof to show his employment with the petitioner and that the management has failed to rebut the evidence of the workman. The Industrial Adjudicator further held that the petitioner/ management has raised a false defence by denying employer and employee relationship which stands established between the parties. On appreciation of evidence on record, the Industrial Adjudicator concluded that the petitioner has terminated the services of the respondent without recourse to the procedure prescribed by law and as such the termination of the respondent was illegal and unjustified. However, instead of granting the relief of reinstatement and back wages, the Industrial Adjudicator has granted a lump sum compensation of Rs. 1 lakh in favour of the respondent/workman along with interest @ 18% per annum from the date of filing the claim till realization apart from the cost of litigation of Rs.10,000/-.
8. Pursuant to the order of this court dated 01.03.2012, the petitioner deposited the compensation awarded with the registry of this court, which was ordered to be released on 11.04.2012 to the respondent/workman.
9. The learned counsel for the petitioner submits that the petitioner has been in real estate business and the respondent was not in its regular employment. He submits that the respondent used to bring real estate business and they used to make the payment of commission. He urged that the burden to prove a particular fact is always on the person who alleges the same and since it was the contention of the respondent/workman, the burden was on him to prove and establish the fact of his employment with the petitioner by leading cogent evidence. He submits that the respondent has failed to place any documentary evidence in support of his case.
10. In support of his contentions, the learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in U.P.State Electricity Board & Anr. Vs. Aziz Ahmad 1 (2009) SLT 587, Management of Puri Urban Cooperative Bank Vs. Madhusudan Sahu and Anr. 1992 II Labour Law General 6, a judgment of Single Judge of the Calcutta High Court in Swapan Das Gupta and Ors. Vs. The First Labour Court of West Bengal and Ors. 1976 L.A.B. IC 202 and a Division Bench judgment of the Gujarat High Court in Abad Dairy Dudh Vitran Kendra Sachalak Mandal Vs. State of Gujarat & Anr.1989 LAB. I.C. 1770.
11. Per contra, it is submitted by learned counsel for the respondent that the reference has been answered correctly and fairly by the Industrial Adjudicator after appreciation of evidence adduced by the parties and there is no illegality or perversity in the Award and petition is liable to be dismissed.
12. I have heard learned counsel for the parties.
13. It is trite that in writ jurisdiction under Article 226 of the Constitution of India, this Court is not to sit in appeal over the Award rendered by the Industrial Adjudicator. The respondent/workman has proved the copy of the Statement of his Saving Bank Account with Bank of Maharashtra, Karol Bagh Branch, New Delhi through its Special Assistant Sh.Sushil Kumar (WW[4]). The Industrial Adjudicator has noted certain regular credits in Saving Bank Account of respondent Ex.WW4/A on 07.06.1998, 07.07.1998, 07.08.1998, 08.09.1998, 15.10.1998, 07.11.1998, 10.11.1998, 08.12.1998 and 08.01.1999. The amount credited has been varying from Rs.1,000/- to Rs.4,000/-. The Industrial Adjudicator has observed that the respondent/workman has well explained that sometimes he used to take the advance in cash from the management which used to result in deductions of the amount. The petitioner, who has examined its Director as MW[1], failed to rebut the evidence of the respondent/workman. MW[1] has neither explained in his deposition as to how these payments were admittedly credited by them in the saving bank account of respondent/workman nor filed its accounts books and the vouchers against which the payment was credited in the account of the respondent/workman.
14. The petitioner has changed its stand before the Industrial Adjudicator. In its written statement, the petitioner has denied that there was any relationship of employer and employee between the parties. In its written statement, the petitioner has nowhere even mentioned that the respondent was bringing the work of real estate and used to be paid commission, if the deal was matured. However, in the cross-examination of the respondent/workman, the petitioner has given the suggestion to the workman that he was one of the agents of the property dealer, who was used to bring the prospective buyers and sellers or that the petitioner used to pay the amount of commission to the respondent for bringing the prospective buyers to purchase or sale of land. Both these suggestions were denied by the respondent/workman. These suggestions were given by the petitioner/management beyond its defence in the written statement. Similarly, beyond pleadings MW[1], Sh. Bhupinder Singh, the Director of the petitioner has testified in his affidavit that the respondent was just a person who used to bring clients/prospective buyers for sale and purchase of the land/plot and in lieu of the same he was rewarded his commission. This deposition being beyond pleadings cannot be given any credence. In his cross-examination MW[1] testified that since the respondent was working with Mr. Kuldeep, he is not in possession of any document showing any deal of the property vis-à-vis the respondent. This deposition in cross-examination is also beyond pleadings and MW[1] by stating so intended to suggest that the respondent was working with Mr. Kuldeep which was neither pleaded in its written statement nor put to WW[1] in his cross-examination. MW[1] further testified in his cross-examination that no voucher used to be prepared for payment of the commission and voluntarily stated that he used to make the payment to Mr. Kuldeep and at his instance he used to make the payment to the respondent. He admitted that he made the payment to the respondent through cheques. The petitioner/management is a company and if any payment is made by the company, it is in ordinary course of business made against a voucher and payment should be reflected in the Books of Account. But the petitioner did not trouble itself to bring on record the best evidence available with it.
15. Earlier MW[1] has testified that respondent used to bring clients and prospective buyers for sale and purchase of the land/plot and in lieu of the same he was rewarded his commission. To the contrary, MW[2] Sh. Kuldeep Sehdev, property dealer testified that the respondent/workman used to work with him and after receiving the commission from the petitioner he used to make the payment to the respondent. He further testified that sometimes on his request, the petitioner used to issue cheque in the name of the respondent. In his cross-examination he could not show any document of his alleged dealing with the petitioner. He admitted that he never paid any commission to the respondent/workman by cheques. The learned counsel for the petitioner during the course of the arguments admitted that the payments credited in the saving bank account of the respondent (Ex.WW4/A) were made by the petitioner and not by MW[2] Kuldeep. By his deposition and documentary evidence, the petitioner has been able to prove his employment with the petitioner/management.
16. It is trite that the burden of proof to be an employee with the management primarily lies on the workman who claims to be the workman under a particular management. However, the degree of proof, so require would, however, vary from case to case. If the Management is not able to rebut the evidence adduced by the workman an adverse inference is required to be drawn against it. In the Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari (2005) 10 SCC 792, a three Judge Bench of the Hon’ble Supreme did not interfere with the findings of the Labour Court and Central Industrial Tribunal where the Management/Bank was not able to rebut the documentary evidence of the workman. The relevant paragraph No.8 and 10 reads as under:-
impugned order. The appeal fails and the same is dismissed with costs.
17. The petitioner has denied the relationship of workman and employer in its written statement. However, beyond its pleadings the management has given suggestion to the workman in his cross-examination that he used to bring prospective buyers and sellers to the management for sale and purchase of the land and they used to pay him commission by cash or cheque. In further cross-examination of the workman, it was suggested by the management beyond pleadings that he was one of the Agents of the property dealer, who used to bring prospective buyers and sellers. Further beyond pleadings, MW[1] deposed in his affidavit that the respondent used to bring clients/prospective buyers for sale and purchase of the land and in lieu thereof they used to reward him the commission. The evidence of MW[2] Kuldeep Sehdev is also beyond pleadings of the petitioner/management. The respondent has sufficiently discharged his burden of proof particularly by the statement of his saving bank account which could not be rebutted by the petitioner/management in any manner. Therefore, the Industrial Adjudicator has arrived at a right conclusion after due appreciation of evidence that there was relationship of employer and workman between the parties.
18. The respondent has testified that his services were terminated illegally by the petitioner on 28.03.1999 without any reason. The respondent lodged a complaint with the Assistant Labour Court dated 01.04.1999 Ex.WW1/1 immediately after his termination. He also sent a notice to the petitioner/management dated 31.03.1999 by registered post, copy of which is Ex.WW1/2. The copy of the complaint lodged by him with the police and sent through post is also Ex.WW1/5. A copy of postal receipt and registered AD card is Ex.WW1/4 (collectively). The Industrial Adjudicator has noted that the petitioner/management did not challenge the authenticity of these documents in the cross-examination of the respondent/workman. In the circumstances, findings of the Industrial Adjudicator that the services of the respondent were terminated by the petitioner illegally and unjustifiably, cannot be faulted with.
19. Instead of granting the relief of re-instatement with back wages the Industrial Adjudicator has awarded Rs.[1] lakh as lump sum compensation along with interest and litigation costs in the peculiar facts and circumstances of the case. The learned counsel for the petitioner submits that there is no justification for awarding Rs.[1] lakh as compensation. It has been established on the record that the respondent/workman was working with the petitioner since September, 1997 and his services were terminated on 28.03.1999. MW[1] has testified in his crossexamination that he is not in a position to tell as to whether the respondent is gainfully employed. In the circumstances, the compensation of Rs.[1] lakh with interest and cost of litigation is not in any manner excessive.
20. In view of this discussion, I do not find any perversity or illegality in the impugned Award. Therefore, the petition is dismissed accordingly.
21. Trial Court Record be sent back forthwith.
JUDGE MAY 3rd, 2018 “sandeep”