Evergreen Packaging Industries v. Vikal Singh

ORDER

07.01.2013 versus DINESH KUMAR For detailed orders in these cases, see connected No.4079l20I I decided on 07.01.2013. JANUARY 07,2013 ..... Respondent I , writ petition being W.P.(C) l/1 I / 't],-z VPII(SANGHI, J. Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. {i g 6-10. ,I. INI ]I]X{E I{IGH COUITT Otr DEI.T{X AT NEW DtrX-X{I + W.F.(C) 4079/201I" & C.M. No. 8441/2011 (for stav) (arising out of Award in ID No. 02108) EVERGREEN PACI(AGING INDUSTRIES ..... PEtitiOTTET Through: Mr'. A.P. Dhamija & Mr' J'P' Singh, Advocates. VEISLIS ..... ResPondenl i soNE' LAL rhro'gh: Mr' Arnn K' Yadav, Aclvoiate' 1_ w"p.(c) 4080/2011 & C.M. No. 8444/2011 (for stav\ (arising out of Award in ID No' 04/08) IIVERGREEN PACI(AGIN9 INDUSTRIES ..... Petitioner Through: Mr. A.P. Dharnija & Mr' J'P' Singh, Advocates. versus BI.TENDER KUMAR ""' ResPondenC Through: Mr. Arun I(. Yaclav, Advocate' + W.F"(C) 408X/20L1 & C.M. No. 8447/20Ltr' (for stav) (arising ont of Award in ID No. 03/08) EV]]RGREEN PACI(AGING INDUSTRIES PCtitiOTTCT Through: Mr. A.P. Dharnija & Mr' J'P' Singh, Advocates. VEfSUS RAJU ""' ResPondPnt Through: Mr. Arun I(. Yadav, Advocate' ,Y.P.(C) 4 079/20} I & otlter conttecterl nudters ' Page I of )2 -1" W.F.(C) 4082/201L & C.M. No.8450/20tr1' (for stav) , (arising out of Award in ID No. 01/08) E,VERGREEN PACI(AGING INDUSTRIES ..... PEtitiONET Through: Mr. A.P. Dhamija & Mr" J'P' Singh 2 Advocates. , verstls DINESI{ I(UMAR ""' ResPondent Through: Mr-Arun I(. Yadav, Aclvocate' -t-w.F.(c) 4189/20LL & C.V[. No. 8523/201tr (for stav) (arising out of Award in ID No. 05/08) IIVIIRGREEN PACKAGING INDUSTRIES ..... Petitiotrer Through: Mr. A.P. Dharnija & Mr" J.P' Singh, Advocates. VCfSLIS r Yadav, eft'ix#l'* COX{-AMi . X.[ON'EX,E M[T. JUST'ICE VIPIN SANGT{X OR.DER. ,,lt

07.0X.201-3

¶1'fhe aforesaici writ petitions have been pleferrecl to assail the similar au,arcls passed on the same day, i.e., 16.12.2010 in industrial disputes raised by the responclents in these petitions, the details whereof have beeu i'dicatecl hereilabove. The petitioner-management in all these petitions is , tlie sarne. The clain'r raised by the responclents-workmen is sirnilar, ancl the . issues raisecl by them also being similar, thelr havs been disposecl of by the ll/.P.(C) 4079/201 I & othet connectetl nudters Page 2 of l2 /o ft similar orclers by Sh. Daya Prakash, Presiding Officer of the Labour Court. Commol argulrents have been advanced by both counsel and, consequently, lhese petitions are being disposed of by this comrnol judgment'

¶2'f6e clairn of each of the respondents was that they have been wolliing v,ith the petitioner-management continuously for a number of years. The petitioler is engagecl in the manufacture of cortugated boxes. The case of 'each of the responclents was that they were not being paid wages prescr-ibecl try law, arrcl were not being given the benefits to which they were entitled as per law. Tliey claimed that when they raisecl their demand for compliance of Lhe varions laws relating to worktnen, the petitioner-management rerlovecl t-hern without complying with the provisions of Section 25 F of the Inclustrial Disputes Act, 1947 (I.D Act for sliort). The responclents preferrecl clirection petitions before the Labotrr Court by resort to Section l0(4A) of tlie I.D. Act as applicable to Dell-ri.

¶311 respect of each of the lesponclents the petitioner dispntecl that they wefe ever ernployecl by them. Consequently, on 25.7I.2008, the Labour Court franecl the issue whether there is any relationship of ernployee ancl employer-between the claimantb/workmen ancl the petitioner het'ein. In each of these cased, the respondents-workmen filed ttreir affidavits along with clocnpreltary evidence that they sought to produce. Two of the workmetl, ytz. sonelal (Responclent in w.P.(c.) No. 407912011) and vikal singli (responcle't in W.P.(C.) No. 4IBgl20I1) fiied their respective Electoral plroro Iclenrity Cards (EPIC), which showed their addless as A-782, Shastri Nagar, DelSi - 52. This was the address of the petitioner'-lnanagement as give' by the respondents in their clairn petition. The petitioner led the ly.P.(C) 4 079/201 I & olher connected n'otlet's 1l eviclence of Sh. I-Ianuman Prasad Singh, Manager as MW-1'

¶4The case of the petitioner was tl-rat the respondents were known to Slt. FTanurnal Prasacl Singh, as they hailed from the same native village as Sh. .'t I-Ianuman Prasacl Singh. Out of sympathy, Sh. I-Ianutnau Prasad Singh hacl allou,ecl the respondents to use the acldress of 4-782, Shastri Nagar, Delhi - 52, where he was residing (in accommodation providecl by the tllanagenlent), as the respondents' postal acldress and the address in their llplc. The case of the petitioner was that the EPICs by themselves will not establish the enployer-employee relationship between the petitioner and the respondents. Duling the cross-examination of Sh. Flanuman Prasad Singh, MW-1, he stated that the management maintains record of all the workers e'rployecl in the management ancl that he corild procluce the same in Court.

¶5The Laboul Coult by the irnpugnecl awards has helcl that the responclents had been able to establish the employer-ernpioyee relationship. . Wliile coming to this conclusion, the Labour Court held that: not one, bttt Iive clif1.ereqt.persons were showing the same residential aclclress iir their EpICs ancl there was no reason for Sh. I-Ianurran Prasacl Singh to give the iicJclress of tlie petitioner to the said five persons/clairnants before the Labour Cogrt. Colsequently, the case of the petitioner-management on this account was cloubtecl. The Labour Court also was influenced by the fact that, despite the statelrent of the management that they were rnaintaining the records, they hacl not produced the Attendance Register and the Wage Register. The Labo'r Courl held that if the respondents were not worlcing witli the management, then the m.anagement could have produced the said registers to clear the clonbt, if any. Adverse inference was drawn for not producing the ly.P.(C) 4079/201I & otlrer clnnected nuiltet's Page a gf 12 Iu saicl register:s against the petitioner. Consequently, the Labour Court hel'd that tlie ernployer-employee relationship stood establish.ed and awarded hrrnp-sum compensation of Rs.10,0001-to each of the.respondents'

¶6The slbmissiol of learnecl counsel for the petitioner before this Cottrt is tliat-the olns to plove the existence of relationship between the employer a.cl [he enployee is on the employee/worlcman. In this respect he relies on Frem Nath Yadav Vs. Chandra Bose & Ors., 174 (2010) DLT 352' It is, Llerefore, argued that the Labour Court was in error in drawing the adverse ilferelce against the petitioner merely on account of non-prodnction of the recorcls. It is also argned that the respondents took no steps eithel to procluce any cogent eviclence or to sllmrnon the records of the petitioner before the Labour Courl. j. 01 the other hand, learnecl counsel for the respondents has clrawn the atteltiol of this Conrtto th.e older dated 03.06.2011 passed in one of these lretitions, rramely W.P.(C.) No.41891201L I consicler it appropriate to reprocluce the order in its entirety: " I . The petition imptrgns the avva.rd dated I6th Decentber, 2010 of the Indttstrial Aditdicator fincling o relationship of entployer ancl entploltee beh,veen the petitioner and the respondent crnd clirecting the petitioner entployer to pay ltLmp sltn't cotlxpenscttion of Rs.70,000/-to the respondent worlunan for ille gal termination of employment -

¶2The petitioner entployer contested the claint b1t clenying the relationship of employer and employee. The Industrial Acljtrclicator has recorcJecl.that the respondent workntan except fo, his own affidavit cottld not prochtce dny proof of 'e,nplo1,ntent. Flotvevar, the In&,rtrial Adiudicator has, on pdge \V.P.(C) 4 079/201 I & olher connectetl mfttters Page 5 ofI2 t2 26 oJ' the paper. boolc, dravvn adverse inference against the petitioner employer for not producing the attendance register-and wctge register and accordingly returnecl a fincling' ofJctct of existence of relationship of enrployer ancl entployee.

¶3Attention of the cotmsel for the petitioner has been iwited to the recent clicta of the Sttprente Court in lftislrtta Bltagyu .Yata IYigam Vs. Mohumtned Rufi (2009) I I SCC 522 laying dou,n that a Cctstnl tvorker is not expected to have a apltointment letter or any receipt of having worked for any pirtiatlar clay anct thoztgh the initial ontrs is Ltpon hint bt'i the 'sctnrc stctncls ilischarged by stattng so on ffidavit .and the onus then shifts on the employer to establish that the nanle of the yvorlcmcm does not exists on .the rolls ntaintained by it. In this ttietv of the ntatter, the present controversy lryoltld be fttlt cot,erecl'by the jt'tdgment aforesaid-tl perusal of the cross exctntirta.tion of the.'witness of the petitioner entployer (at page 4I of tlte paper book) also shot'r's that the responclent tvorlonan expressly cross examined the witness of the petitioner entplolter on the said asPect. zl. The cotmsel for the petitioner has hotvever contenclecl that no clirection for sr'rch procluctiont'vas tnade.

¶5Once the tttitness of the petitioner entployer had been cross exatninecl to clravt adyerse inference, tt yvas the dttty of the petitioner entployer to pro&'rce the said records either b' excrntining other witness or othenvise by nxalcing an appliccrtion to the Cotrt. Reference in this'regard can also be ntade to Section 106 of the Evidence Act, I872 lcrying dovvn that vvhere the fctcts / recorcl ctre in the exclttsive knotvledge of a particttlar person, the onus is ttpon that person to protte the sclnle.

¶6The cotmsel for the petitioner has referred to Frem Nath yads,t, vs. chandra Bose 174 (2010) DLT 352 but in viet,v of the cJicta aforesaicl of the Apex Cotrt, need is not felt to clisct'tss the saidjudgntent. ll/.P.(C) 4 079/20 I I & otlrer connected nntters Page 6 bf 12 It4 )v

¶7Thottgh no case for interference is ntade ottt but the cot'tnsel .for the petitioner has lastly stated that in other fottr t'vrit petition,s against iclentical ' at'vards being W'P'(C) -Nos.4079/2011 to 4082/2011 listecl before Hon'ble Ms-Justice Relchcr Sharnta toclay, notice has been isnrecl for 13th septentber, 201I and stast granted subject to the pititioou clepositing 50% of the atvardecl antottnt in the Cou"t. B. tlccorclingly, isstrc notice .of this petition also b), all ntocle,y inclttcling clasti reh,rnable on I3th Septentber, 20I I .

¶9Subject to the petitioner clepositing 50% of the at'varcle-cl ctnto'Lutt in this Cotit tvithin fottr vveelcs of today, there shall be stast of opercftion and implementation of the at'vard'

¶10S.thject to orclers of Ilon'ble the Chief Justice, Iist all the f:,e pitttions before the sante Bench on the next date' I l. The recorcl of the Inch.tstrial Acljttcticator be reqtisitionecl. . CA/I No.B624/2011 is disposed of. ! cM Nos.B625/2011 nnd 8626/2011 ftoth tls 151 cPC fotr exem\tionl tlllottted, nlbject to jt'tst exceptions' " B. Learlecl counsel for the lespondents snbmits that the addr-ess of the petitionlr as given in his claim petition was 4-782,'shastri Nagar, Delhi -

¶52The petitioner-lnanagement dicl not controvert tliat this was not their aclclress. I-Ie submits that since the respondents were using the saicl adclress, tlrere is sirfficient evidence to establish the relationship of employet &' employee between the parties. I{e subrnits that once the Iesponclents steppecl ilto the witness box ancl led their evidence categorically clairning ll/.P.(C) 4079/20t1 & other connecled nudlers Page 7 of I2 l{ Lhat they had been working as ernployees of the petitioner-mal1agemenl, the initial onus on the workrnan stood discharged g. In his rejoincler, leamecl counsel for the petitioner has pointed out that the olcfer clated 03.06.2011 passed by the Court in W.P.(C.) No. 4IB9|201I is noL a finarl view in the rnatter, ancl it merely recorded the prirna-facie view of tlie Conrl.. He submits that a perusal of tlre judgment of the Supreme Court in X{rishna Bhagya (supra) would show that the Suprerne Court, in fjrct, allowecl the petition of the management and once again put its starnp of apltroval on the earlier consistent view taken by it, that the mere non-procluction of the recorcls by the managelnent carurot led to the clrawing of aclverse in"l'erence against the managernent while deciding the issue as to u,l-rether or not the employer-employee relationship exists between the parties.

¶10I-Iaving hearcl learned counsel for the parties and consiclerecl the recotcls as well as the decisions cited before rte, it appears to me that,the Conrt wfiile passing the order dated 03.06.2011 had only made a prirna-facie observal-ion in relation to the judgrnent of the Supreme Coutl in l{rishia Bhugya (supra). The petitioner had only been pttt to notice of the said jr-rclgment. I-Iowever, the petitioner did not have the occasion to go thlough the same ancl malce its subrnissions as made today before me. Learned coLrlsel for the petitioner has been able to point ottt to me the real import of tlre jnclgnent in lftishna Ehagya (supra) which, it appears, was rnissed by the court while passing the orcler clated 03.06.2011. A detailed co'si4eratiol of the said judgrnent shows that in that case also the terr'inatiop of the services was challenged before the Labour Conrt by filing lV.P.(C) 4 079/201 I & other comectetl nntters le +s an application nnclel Section 10(4-4) of the I.D. Act. The sarne was oou[estecl b), the Jala Nigam on the sarne ground, as in this c4se, that there was l1o relationship of employer and employee between the parties. I{orvever, this stand of the Jala Nigarn was not accepted and the award was renclerecl try the Labour Court in favonr of the workrnan. The awarcl was cherllengecl b1r ths Jala Nigam in w.P. No. 40822 1L999. The same was heard along rvilh various other writ petitions and clisposed of by a common order' While in the other cases there was a considerable delay in raising the inclustrial clispute, and the workman in those cases were non-suitecl on that grouncl, in tlie case of the workman in W.P. No.4082211999, the learnecl Siugle Juclge set asicle the award of the Labour Court holdirig that there iryas .o eviclence to establish that the workrnen hacl ever been in the service of the Jala Nigali. I-Ie held that the workman haci not clischargecl the initial onus of proving that he had worked for more than 240 days with the Jala Nigarn. The writ petition was allowecl and the award of the Labour Court was set asicle. i f . A rvrit appeal was plefened by the workrnan before the Division IJencli, rvl'rich was allowed. Consequeltly, the award was restored. The mallagernelt then preferred the Special Leave Petition before the Supleme corrrt, rvhich has been allowecl by the judgment in Iftishna Elmgya (srqrla), thereby setting aside the juclgment of the Division Bench and restoring the view talcen by the leamed Single Judge.

¶12Tlre Supretne Court in lftishno Bhagya (supra) has adverled to its earlier clecisions in RBI. Vs. ,S. MurtL (2005) 5 scc 100; Bntola cooperatit,e sugar Mills Limited vs. sowarun singh, (2005) B scc 4Bl; ly.P.(C) 4 079/20 II & other contrecled nililers Surendrunogar Distt. Panchayut Vs. Duhyubltui Amarsinh' (2005) B SCC 750; R.ange Forest Officer vs. ,s.z trIadimuni, (2002) 3 scc 25; Mwnicipal Corporation, Faridabatl Vs. Siri Niwas, (2004) B SCC Ig5; M.nD. Electricitlt Eourtl Vs. I{arirum, (2004) B SCC 246; ancl the judgment in R..M. Vellatti Vs. Executtue Engineer, (2006) I SCC 106. .13. Irr R.ll{. Yellatti (supra), the Supreme Coul observecl that th9 provisiops. clf the Eviclence Act, in terryts, do not apply to the proceedings urrcler Seclion 10 of tlie Industrial Disputes Act, 1947. I-Iowevel, applyirig geleral pr-inciples and on reading of the earlier decisions, the Suprerne Cour:t helc[ tlat it hacl repeatedly taken the view that the burden of proof is on the claimant/lvorkman to show that he had worked for 240 days in a given year. This blr4e11 is clischarged only rqton the workman stepping in the witness box. 'fhis burclen is discharged Llpon the workman aclducing cogent erriclence, lroth oral and clocnmentary. In cases of terrnination of services of claillr-irylgecl earnels, there would be no letter of appointment ol termination. l'here wolld be no receipt or proof of payment. Thtts in most cases, the rryor-lcnal can only call upon the ernployer to produce before the Coufi the loninal rnuster roll. for the given period, the letLer of appointtnent or tel-pipatio6, if any, the wage register, the attendance register, etc. Drawing of aclverse inference ultimately would clepend thereafter on the facts of each case. It was also obseived that the earlier decisions make it cleal that tnere alficlavits or-self-serving statements made by the clairnant/workman would .ol sr.rffice i1 the matter of discharge of the burden placecl by law on the rvorknran to plove that he hacl wolkecl for 240 days in a given year. It was also observecl that the earlier decisions lay clown that tnere non-proclnc.tion lV.P.(C) 4 079/201 I & olher cottnqctetl nutters Page l0 ofl2 Lg of musLer rolls per se without ally plea of supplession by the claimalt/ivorlcrlan will not be the grourd for the Tribunal to draw an adverse inf-erence against the management. .11.r

¶14[n lhe pr-esent case,-management's witness did state that they rnaintain l6e recorcls in relation to their-wor-kmen/employees and that the same coulcl be proclucecl. It is not the respondeirts' case that they moved the Laboltr Conrt reqgiring the petitioner-management to pro{uce the said record. This' being the position, and following the aforesaid dictun, in my view, no aclverse ir-rferelce couid have been drawn against the petitioner-lnanagement nerely because the management, of its own accorcl ancl voluntalily, clid not proclnce the said recorcl. It would have been a different matter if, either at tl"re i'stance of the respondents-worlonen, or on its own, the Labour Court hacl clirectecl the petitioner-management to produce the recorcls and the ntaltagemeltt hacl failecl or refLsed to produce the same rvithout any exf lalation lbr the salne . Tliat is not the position in the present cases'

¶15So far as the eviclence procluced by the respondents is concernecl, as 'oticecl lbove, the same primarily is the EPIC of,two of them, which show tlieir erclclress as A-782, Shastri Nagar, Dellii - 52.' In the case of the other .rvoi-kmen, they had only procluced the legal notice stated to have beeu sent along with the postal receipts/UPC.

¶16So f-ar as the adclress given on the EPIC for the aforesaicl two responclents is concemed that, in rny view, is not enough to establish that the saicl responclents were ernployed with the petitioner-management. It has cor1le out ir-r the cross-examination of both tl'rese wolktlen that A-782, lv.i,.(c) 4079/201 I & othet conrtecled ntiltters Page lI of 12 ^* q Slrastri Nagar, Delhi - 52 consists of residential rooms ancl that Sh. I-Ia1urnal Prasad Singh, the rnanager of the petitioner-management.resides at the saict aclclress. The afbresaid evidence of these two responclents viz. tlieir,EPIC, at best, shows that A-782, Shastri Nagar, Delhi - 52, which was eit-her a wholly residential accommoclation plovicled by the management or rlay be a urixecl use premises, was shown as the postal acldress by these two rvorl<rlen. J][e case of the managetnent was that Sh. Ifannman Prasad Singh was knowp to these workmen as th.ey hailed ftom the satne village and, out of syurpatl"ry, he hacl permitted them to furnish the shid address for postal pLlrpose alcl for the purpose of making the EPIC. No evidence to the contrary was lecl by these wolkmen. The production of the EPICs, by itself, cloes lot establish the existence of an employer and employee relationship belureen the petitioner-lnanagelnent and these workmen. The observation of Lhe leanrecl Labor.rr Court that in all the five cases, tlie EPICs liave been prclchrcecl urith the same aclclress is factually not correct. In my view, the filclipg that the respondenls in these petitions had established the ernployer-eruployee relationship is cornpletely erroneolls and stems out of incorrect application of the law.

¶17For the aforesaid reasons, the writ petitions are allowed ancl the igrpngnecl awarcls are set aside leaving the parties to bear their own Costs. The alrounts depositecl by the petitioner in the aforesaid cases be leflinded to Lhe pe[itioner along with interest accrllecl theleon.

GtrXX, J. .[ANUAt{.v 07,20L3 d,5'n V.P.(C) 4 079/201 I & alher connecterl nntters Page l2 ofl2

:+ 7-t0. + IN THE HIGH COI]RT OF DELHI AT NEW DELHI + W.P.(O 4080/2011 & C.M. No. 8444/2011 (for stav) EVERGREENPACKAGINGINDUSTRIES .....Petitioner Through: Mr. A.P. Dharnija & Mr. J.P. Singh, Adv versus BIJENDER KUMAR ..... Respondent Through: Mr. Arun K. Yadav, Advocate. + W.P.(O 4081/2011 & C.M. No. 844712011 (for stav) EVERGREENPACKAGINGINDUSTRIES .....Petitioner Through: Mr. A.P. Dhamija & Mr. J.P. Singh, Adv versus RAJU ..... Respondent Mr. Arun K. Yadav, Advocate. Through: + W.P.(C) 4082/2011 & C.M. No.8450/2011 (for stav) EVERGREENPACKAGINGINDUSTRIES .....Petitioner Through: Mr. A.P. Dhamija & Mr. J.P. Singh, Adv ..... Respondent Through: Mr. Arun K. Yadav, Advocate. + W.P.(O 4189/2011 & C.M. No. 8623/2011 (for stav) EVERGREENPACKAGINGINDUSTRIES .....Petitioner Through: Mr. A.P. Dharnija & Mr. J.P. Singh, Adv versus VIKAL SINGH Through: Mr. Arun K. Yadav, Advocate. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI