Delhi District Court
Anuj Singh Tomar vs M/S Jagdamba Metals on 23 December, 2024
IN THE COURT OF Dr. SURENDER MOHIT SINGH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 1413/22
CNR No. DLCT13-003868-2022
In the matter of:
Shri Anuj Singh Tomar
S/o Sh. Ganga Singh Tomar,
Age 37 years
R/o H.no.3686, 2nd floor,
Gali Loha Wali, Chawri Bazar,
Delhi-110006
... Workman
Versus
M/S Jagdamba Metals,
3745, Charkhewalan, Chawri Bazar,
Delhi-110006
Through Proprietor,
Mr. Pradeep Verma,
Mob. no98732112365
...Management
Date of Institution : 30.07.2022
Date of Award : 23.12.2024
AWAR D
1. Reference under Section 10(1)(c) read with Section
12(5) of the Industrial Disputes Act, 1947 has been received from
Joint Labour Commissioner, Central District, Labour
Department, GNCT of Delhi, Employment Exchange Building,
PUSA , New Delhi setting out following dispute for adjudication
by the Court:
"Whether the services of Sh. Anuj Singh
Tomar S/o Sh. Ganga Singh Tomar have been
terminated illegally and/or unjustifiably by the
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 1/10
management; and if so, to what relief is he
entitled and what directions are necessary in
this respect?"
2. Shri Anuj Singh Tomar has filed statement of claim
asserting employment in the post of 'clerk/helper' for 28 years
i.e. since 1992. It is averred that on 04.04.2021, Mr. Pradeep
Verma, proprietor had asked him to resign and collect full and
final outstanding dues, however, the same was not paid but his
service was terminated. It is submitted that workman had been
discharging his duties with complete devotion without complaint
during his service tenure but was not allowed to join duty on
04.04.2021. It is further stated that management did not pay the
salary for February and March, 2021. It is further submitted that
workman was not provided any basic facilities like leave book,
over-time card, bonus, ESIC, PF etc.
3. Repeated requests for reinstatement in service
followed by complaint sent to Assistant Labour Commissioner
were neglected by management whereas demand notice dated
18.09.2021 sent through registered post seeking reinstatement in
service was neither replied not complied. Workman, thereafter,
filed statement of claim before Deputy Labour Commissioner,
Central, Delhi but settlement could not be effected due to
adamant attitude of management leading to reference of dispute
by the Labour Office. It is also submitted that workman being
unemployed since the date of termination of service without any
rhyme and reason and without issuing show-cause notice is
facing hardships and is entitled to be reinstated with continuity of
service and other consequential benefits including full back
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 2/10
wages.
4. M/s Jagdamba Metals has filed written statement
contesting the claim by disputing employer-employee
relationship. It is further averred that workman has not completed
240 days in service and is a gainful employee. It is prayed that
present claim is not maintainable and liable to be dismissed.
5. After completion of pleadings, on 20.01.2023
following issues were settled:
(i) Whether services of Sh. Anuj Singh Tomar S/o Sh.
Ganga Singh Tomar appointed as 'Clerk/helper' with
management in the year 1992 have been terminated
illegally and/or unjustifiably by the management on
04.04.2021? OPW
(ii) Whether statement of claim is liable to be dismissed
in the absence of employer-employee relation? OPM
(iii) Relief
6. Shri Anuj Singh Tomar has reiterated averments of 28
years of continuous service in his affidavit Ex.WW1/A tendered
in evidence by relying upon following documents in his
examination-in-chief recorded on 03.06.2023:
1. Office copy of demand notice addressed to
management is Ex.WW1/1.
2. Photocopy of tax invoice (two in number) referred
as Ex.WW1/2 in affidavit be read as Mark-A (two
pages).
7. He was cross-examined at length by AR for
management. During cross-examination, WW1 deposed as under:
"Except the documents already exhibited, I have
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 3/10
got no other document in my possession to prove
that I was an employee of the management since
1992. As the wages were being paid in cash, I
have got no document in my possession to prove
that I was getting Rs.15,000/- per month as my
wages. With respect to my alleged termination on
04.04.2021, no document including termination
letter were issued by the management, hence, I
could not place the same on record".
8. He has also brought Mr. Surender who deposed as
WW2 in support of averments of WW1. He was also cross-
examined at length by AR for management and thereafter, on
01.03.2024, WE stands closed and matter was listed for ME.
9. Shri Pradeep Verma, Proprietor of M/s Jagdamba
Metals examined as MW1 has relied upon his evidence affidavit
Ex.MW1/A.
10. MW1 was cross-examined at length by AR for
workman. Relevant extract of his cross-examination is as under:
"I am running management firm since
1985 in the name of Jagdamba Metals. I have not
any permanent employee on roll for loading and
unloading of goods as the charges for the same
are borne by the customer. The cutter machine is
being operated by my son. I have not employed
any person in my shop. The shop is being run by
me along with my two sons. Since, the date of
inception of the shop, I have not employed any
person".
"It is correct that the document Mark A bears the
correct address of the present firm as well as of
another firm being run by me. It is correct that
the firm mentioned in Mark A do have business
dealings with the present firm. As per my
knowledge, the firm M/S Metalax Incorporated is
being run by Mr. Manish and Mr. Aneesh. I also
cannot identify the signatures on Mark A. I am
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 4/10
not aware as to how the signatures of the
claimant are there on Mark A. I can produce the
original of the same, if the same is in my records
which I have to check".
"I am running the metal work in my
shop. I have never seen the workman. I have not
received any demand letter from the workman.
No Inspector from Labour Department has come
to my shop in the present matter. I have seen the
workman in the court. I have no employee-
employer relationship with the workman".
11. On 18.10.2024, ME stands closed and matter was
listed for final arguments.
12. It is settled law that the provisions of Indian Evidence
Act, 1872 per say are not applicable in the industrial
adjudications. The general principles of it are, however,
applicable and the principles of natural justice are complied with.
Burden of Proof:-
13. It is well settled principle of law that person who sets
up a plea of existence of employer-employee relation is required
to adduce cogent evidence for discharging the burden as held by
Hon'ble Supreme Court of India in ' Workmen of Nilgiri Co-
operative Marketing Society Vs. State of Tamil Nadu and Ors.
(2004) 3 SCC 514'. Paras 47 to 49 of the judgment of Hon'ble
Apex Court being relevant are extracted below:
47. It is a well-settled principle of law that
the person who sets up a plea of existence of
relationship of employer and employee, the
burden would be upon him.
48. In N.C. John Vs. Secy, Thodupuzha
Taluk Shop and Commercial Establishment
Workers' Union, the Kerala High Court held:
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 5/10
The burden of proof being on the workmen
to establish the employer- employee
relationship an adverse inference cannot be
drawn against the employer that if he were to
produce books of accounts they would have
proved employer-employee relationship.
49. In Swapan Das Gupta Vs. The First
Labour Court of West Bengal it has been
held:
Where a person asserts that he was a
workmen of the Company, and it is denied
by the Company, it is for him to prove the
fact. It is not for the Company to prove that
he was not an employee of the Company but
of some other person.
14. The Hon'ble Supreme Court in 'Kanpur Electricity
Supply Co. Ltd. V. Shamim Mirza, (2009), 1 SCC 20 also held
that:
"20. It is trite that the burden to prove that a
claimant who was in the employment of a
particular management, primarily lies on the
person who claims to be so but the degree of
proof, so required, varies from case to case.
It is neither feasible nor advisable to lay
down an abstract rule to determine the
employer-employee relationship. It is
essentially a question of fact to be
determined by having regard to the
cumulative effect of the entire material
placed before the adjudicatory forum by the
claimant and the management."
15. In Automobile Association of Upper India Vs. PO
Labour Court, 2006 LLR 851, the Hon'ble High Court, Delhi has
also held that- appointment/relationship of workman can be
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 6/10
proved by producing the appointment letter, written agreement,
attendance register, salary register, leave record of ESI or
provident fund etc. by the workman. The workman can also call
the record from the management. Para 14 and 15 of the said
judgment read as under:-
"14. Engagement and appointment in service can
be established directly by the existence and
production of an appointment letter, a written
agreement or by circumstantial evidence of
incidental and ancillary records which would be
in the nature of attendance register, salary
registers, leave record, deposit of provident fund
contribution and employees state insurance
contributions etc. The same can be produced and
proved by the workman or he can call upon and
caused the same to be produced and proved by
calling for witnesses who are required to produce
and prove these records. The workman can even
make an appropriate application calling upon the
management to call such records in respect of his
employment to be produced. In these
circumstances, if the management then fails to
produce such records, an adverse inference is
liable to be drawn against the management and
in favour of the workman.
15. In the instant case, the workman filed an
affidavit by way of evidence on the 29th April,
1993 and closed his evidence. Thus, the only
evidence in support of the plea of employment
was the self serving affidavit filed by the
workman and nothing beyond that to support his
claimed plea of service of seven years. In view of
the principles laid down by the Supreme Court in
Range Officer v. S.T. Hadimani, II (2002) SLT
154 such affidavit by itself is wholly insufficient
to discharge the burden of proof on the
workman."
16. Upon perusal of the aforementioned judgments, it can
be summarily stated that the position with regard to the burden of
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 7/10
proving the relationship of employee-employer is no longer res
integra, the said burden primarily rests upon the person who
asserts its existence, but the degree of proof which is required to
be established, varies on a case to case basis.
17. Further more, as per the settled position of law, the
claimant must prove the existence of the employee-employer by
way of, either direct evidence (producing a letter of appointment
or a written agreement between the workman and the
management) and/or via circumstantial evidence of
incidental/ancillary nature (attendance register, salary register,
leave records, deposit of PF contribution, ESI, entry card, etc),
failing which the claim may not be entertained by the Court.
18. Issue no.2.
Whether statement of claim is liable to be dismissed in
the absence of employer-employee relation? OPM
19. No documentary evidence has been adduced to prove
28 years of continuous services with the management.
20. No document has been called by the claimant from the
office of the management to prove his case.
21. During the cross-examination, WW1 has also
admitted that he has no documentary evidence to prove that he
was the employee of the management. Relevant extract of
cross-examination of WW1 is reproduced below:
" Except the document already exhibited, I
have got no other document in my
possession to prove that I was an employee
of the management since 1992".
"With respect to my alleged
termination on 04.04.2021, no document
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 8/10
including termination letter were issued by
the management, hence, I could not place the
same on record".
22. Although, claimant has examined another witness i.e.
WW2 to depose in support of his case, however, credibility of the
said witness is doubtful as during his cross-examination, he
deposed that he cannot read and write, while, in his evidence
affidavit, nothing is stated that affidavit was read over to him in
vernacular language.
23. Further, the claimant has heavily relied upon his
evidence affidavit Ex.WW1/A.
24. In Range Forest Officer Vs. S.T Hadimani, the
Hon'ble Supreme Court held as under:
3. ...In our opinion the Tribunal was not right in
placing the onus on the management without
first determining on the basis of cogent evidence
that the respondent had worked for more than
240 days in the year preceding his termination.
It was the case of the claimant that he had so
worked but this claim was denied by the
appellant. It was then for the claimant to lead
evidence to show that he had in fact worked for
240 days in the year proceeding his termination.
Filing of an affidavit is only his own statement
in his favor and that cannot be regarded as
sufficient evidence for any court or tribunal to
come to the conclusion that a workman had, in
fact, worked for 240 days in a year. No proof of
receipt of salary or wages for 240 days or order
or record of appointment or engagement for
this period was produced by the workman. On
this ground alone, the award is liable to be set
aside.
25. In view of the principles laid down by the Supreme
Court in Range Forest Officer V. S. T Hadimani (supra) the self
serving affidavit in support of plea of employment by itself is
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 9/10
wholly insufficient to discharge the burden of proof on the
workman.
FINDINGS: In the absence of any direct evidence or
circumstantial evidence of incidental and ancillary nature, the
demand notice (Ex.WW1/1) and tax invoice (Mark A) are not
sufficient evidence to establish the employee-employer
relationship between the workman and the management and to
prove 28 years of continuous service.
26. Accordingly, issue no.2 is decided against the
claimant. Further, as issue no.1 depends upon issue no.2 which is
decided against the claimant, therefore, issue no.1 is also decided
against the claimant.
RELIEF: Statement of claim seeking reinstatement with
continuity of service and other benefits is dismissed as burden of
proof to establish employer-employee relation could not be
discharged by Shri Anuj Singh Tomar.
27. Reference stands answered in aforesaid terms.
28. Copy of Award be sent to Joint Labour Commissioner,
Central District, Labour Department, GNCT of Delhi,
Employment Exchange Building, PUSA, New Delhi for
publication.
29. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT Digitally signed
SURENDER by SURENDER
ON 23-12-2024 MOHIT MOHIT SINGH
SINGH Date: 2024.12.25
00:10:36 +0530
(Dr. SURENDER MOHIT SINGH)
PRESIDING OFFICER – LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS
NEW DELHI
LIR 1413/22 ANUJ SINGH TOMAR VS. M/S JAGDAMBA METALS 10/10