ANTRIKSH CREDITS AND LEASING LTD vs VIKRAM KAPOOR

VINOD GOEL, J. (ORAL)

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 Adjudicatorâ€) 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?.Â

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.Â

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.Â

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.Â

5.In support of his case, the respondent examined himself as WW1, apart from constable Ashok Kumar as WW2 from Police Station Desh Bandhu

Gupta Road, Delhi, Ms. Ajit Kaur, a former employee of the petitioner as WW3 and Sh. Sushil Kumar, Special Assistant with Bank of Maharashtra,

Karol Bagh, Delhi Branch as WW4.Â

6.On the other hand, the petitioner has examined its Director Sh. Bhupender Singh as MW1 and one property dealer Sh.Kuldeep Sehdev as MW2.Â

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.Â

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.Â

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.Â

12.I have heard learned counsel for the parties.Â

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 (WW4). 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 MW1, failed to rebut the evidence of the respondent/workman. MW1 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.Â

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 MW1, 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 MW1 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-Ã -vis the respondent. This deposition in cross-examination is also beyond pleadings and MW1 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 WW1 in his cross-examination. MW1 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.Â

15.Earlier MW1 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, MW2 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 MW2 Kuldeep. By his deposition and documentary evidence, the petitioner has been able to prove his employment

with the petitioner/management.Â

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:-

“8. While there is no doubt in law that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman

who claims to be a workman, the degree of such proof so required, would vary from case to case. In the instant case, the workman has established

the fact which, of course, has not been denied by the Bank, that he did work as a driver of the car belonging to the Bank during the relevant period

which comes to more than 240 days of work. He has produced 3 vouchers which showed that he had been paid certain sums of money towards his

wages and the said amount has been debited to the account of the Bank. As against this, as found by the fora below, no evidence whatsoever has

been adduced by the Bank to rebut even this piece of evidence produced by the workman. It remained contented by filing a written statement wherein

it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the

employee of the executive concerned and not that of the Bank; none was examined to prove the scheme. No evidence was led to establish that the

vouchers produced by the workman were either not genuine or did not pertain to the wages paid to the workman. No explanation by way of evidence

was produced to show for what purpose the workman's signatures were taken in the register maintained by the Bank. In this factual background, the

question of the workman further proving his case does not arise because there was no challenge at all to his evidence by way of rebuttal by the

Bank.â€​

For the reasons stated above, we are of the considered opinion that the respondent workman in this case has established his claim as held by the

Tribunal, and we find no reason whatsoever to interfere with the 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, MW1 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 MW2 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.Â

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. Â

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. MW1 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.Â

20.In view of this discussion, I do not find any perversity or illegality in the impugned Award. Therefore, the petition is dismissed accordingly.Â

21.Trial Court Record be sent back forthwith. Â