{"id":153644,"date":"1999-12-23T00:00:00","date_gmt":"1999-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/charan-singh-vs-ram-kumar-gupta-contractor-on-23-december-1999"},"modified":"2017-05-09T22:57:51","modified_gmt":"2017-05-09T17:27:51","slug":"charan-singh-vs-ram-kumar-gupta-contractor-on-23-december-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/charan-singh-vs-ram-kumar-gupta-contractor-on-23-december-1999","title":{"rendered":"Charan Singh vs Ram Kumar Gupta, Contractor & … on 23 December, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
Charan Singh vs Ram Kumar Gupta, Contractor & … on 23 December, 1999<\/div>\n
Equivalent citations: 2000 IIIAD Delhi 811<\/div>\n
Author: M Mudgal<\/div>\n
Bench: M Mudgal<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Mukul Mudgal, J. <\/p>\n
1.     This writ petition challenges the Award dated 17.9.1996, passed by the Labour  Court in ID. No. 575\/91, OLD No. 604\/86. By the action impugned  in the  claim  leading to the Award, the termination of the  services  of  the workman,  the  petitioner herein, who was then working as Driver  with  the respondent No. 1 was challenged.\n<\/p>\n
2.   The averments of the petitioner are that the services of the petitioner  were terminated without notice and without payment of earned  wages  as well  as  retrenchment  compensation and other dues.  The  petitioner  also pleaded  that  he is unemployed since the date of his termination  and  has consequently  prayed for reinstatement, full back wages and  continuity  of service.\n<\/p>\n
3.   The respondent No. 1’s stand was that the respondent is not an  industry and the claimant is not a workman under the Industrial Disputes Act and nor did there exist over any relationship of master and servant as well  as employer and employee between the parties and there was no establishment or firm on the address of the respondent.\n<\/p>\n
4.   The Labour Court has dismissed the claim of the workman, the petitioner  herein on the ground that the respondent was not an industry  as  there was  no activity in respect of production, supply or distribution of  goods or services to satisfy the human wants and nothing has been produced by the workman  to  rebut the statement of the management witness Shri  Ram  Kumar Gupta  who denied the existence of the industry and company in the name  of Shri Ram Kumar Gupta, Contractor.\n<\/p>\n
5.   The Labour Court, however, found that there existed a relationship  of the  employee and employer between the parties and the reference  was  thus maintainable. However, the Labour Court declined to grant any relief as the petitioner  had  been unable to establish the existence  of  an  industrial dispute. He further held that the respondent, management was not an  industry  and therefore he declined to decide the issue under reference.  It  is this Award of the Labour Court dated 17.9.1996 which is under challenge  in this Court.\n<\/p>\n
6.   The main challenge of the petitioner is on the ground that the systematic activity of driving a car of the respondent by the petitioner  clearly falls within the ambit of the judgment reported as Bangalore Water Supply & Sewarage  Board Vs. Rajapa  by the Hon’ble Supreme Court  as well  as  the definition of an “Industry” in Section 2(j). He  has  further relied upon the principle of law laid down by the Hon’ble Supreme Court  in the above judgment to the following effect :\n<\/p>\n
     “The  focus is functional and the decisive test is the nature  of the  activity  with special emphasis on employer  employee  relations.”\n<\/p>\n
7.   The main reliance placed by the learned counsel for the petitioner  is on  the  statement made by the respondent No. 1 himself that he  had  never appointed  the petitioner-workman in his company. The petitioner’s  counsel submits,  and in my view rightly, that this statement of respondent  No.  1 clearly  demonstrates that the respondent No. 1 was running a  company  and the whole case therefore set up by him falsely was revealed by this  statement  of his. He has further in his cross-examination stated that  the  Car DBA No. 3828 (Car) does not belong to his firm. This also, according to the learned counsel for the petitioner, demonstrated that the respondent No.  1 was running a firm and the denial of the respondent No. 1 about the  existence of an industry\/establishment was clearly false and motivated.\n<\/p>\n
8.   The  relevant  averment made in Para 9 of the writ petition  reads  as follows :\n<\/p>\n
     “That  the respondent No. 1 in his statement stated that  he  had never appointed petitioner – workman in his company. It means the respondent No. 1 was running a company by which he is  performing several Contracts and he is proprietor of the said company  which is concealed by him as he denied all the facts wrongly and  malafidely.  Further  the respondent No. 1 in his  cross  examination stated  “The IBA No. 3828 has belong to my firm’s. It means  that the  respondent No. 1 was owner of the firm whose name  was  concealed by him and the petitioner workman was working as a  Driver under him for that firm. In view of these facts it cannot be said that  respondent  No.  1 is not owner of the firm  which  he  has concealed before the Court. It may be possible that there will be no  industry in the name of Ram Kumar Gupta, Contractor, name  of the firm may be different but respondent No. 1 has appointed  the petitioner  workman for his activities which were carried by  the firm whose name is still in the dark but he admitted so. Once the relation of employer and employee between the parties proved then it  is also proved that the petitioner workman was  working  with the firm of the respondent No. 1.”\n<\/p>\n
9.   Significantly the original counter affidavit in reply to Para No. 9 on 20th July, 1998 was in the following terms :\n<\/p>\n
     “Para 9 is totally wrong, the words “that he never appointed  the petitioner  in his company were never used by him in the  written statement made by the respondent before the Labour Court. Had  it been  true  the  petitioner would have submitted a  copy  of  the statement in support of the contentions which he has not cared to do.  It clearly shows that the contention made by the  petitioner is  not correct. Similarly the petitioner has alleged  “that  IBA No.  3828 has belong to my firm” are incorrect false and  untrue. The  petitioner  is guilty of misrepresentation of fact.  Had  it been true he would have submitted a copy of his statement made by the  petitioner  in support of his contentions which he  has  not cared  to do so leading to the inference that the words were  not used by the petitioner and the allegations and contention of  the
\n     petitioner are false and untrue. It is worth mentioning that  the petitioner  has  not filed a copy of the statement  made  by  the respondent  as MW-1. The Labour Court in support of  the  contentions. The inference drawn on the alleged statement is  therefore unwarranted, and an attempt to misled this hon’ble court.”\n<\/p>\n
10.  The  statement  and  the cross-examination of  Shri  Ram  Kumar  Gupta (Respondent No. 1) dated 11.1.95 was filed in this Court by the  petitioner on 12.5.99. The full text of the statement of MW. 1, i.e., Ram Kumar  Gupta reads as follows :\n<\/p>\n
     “MW  1. Ram Kumar Gupta R\/o H 2\/1, Moden Town, Age 70.  Delhi  on  S.A.\n<\/p><\/blockquote>\n
     There  is  no  Management in the name of M\/s.  Ram  Kumar  Gupta, Contractor.  I  was not working with the Company M\/s.  Ram  Kumar Gupta,  Contractor, at any Management. I never employed the  concerned  Sh. Charan Singh in my company. I had never received  Ex. WW1\/4 and Ex. WW1\/3 and not bear my signature. No demand was ever received  from claimant. The Car No. 8338 does not belong to  me. The  claim  of Sh. Charan Singh is false against me.  No  Company exists  in  the name of M\/s. Ram Kumar  Gupta,  Contractor,  even existed as the alleged firm in the claim statement.\n<\/p><\/blockquote>\n
     XXXXXXXXXXX By AR of Workman.\n<\/p><\/blockquote>\n
     The address on the Ex. WW\/11 & 3 is correct and is of mine. I  do not  say  that notice Ex. WW1\/1 I did not received the  same.  At present  I am working at the given address. I was not  called  by the  Labour Inspector at Rajpur Road, Charan Singh  never  worked with me as a driver in Car No. DVA 3821 Fiat w.e.f 16.9.84. It is incorrect  that  his service was terminated on  28.10.85  without paying of earned wages for the month of Sept & Oct, 1985.  Letter      marked  ‘X’ pertains to me is correct, mark by A\/D also been  the address,  which  is never I did not receive even Ex.  WW1\/5  from Conciliation  Officer.  Th DBA No. 3828 does not  belongs  to  my firm,  even  it is incorrect that I am deposing false.  W.S.  was filed and bear my signature. It is incorrect that I employed  the claimant with out letter. I was brought.”\n<\/p><\/blockquote>\n
11.  In  this  Court on 29.5.99, an additional affidavit was filed  by  the learned counsel for respondent No. 1 to contend that respondent’s statement that he never appointed the petitioner in his Company was made by inadvertence. The relevant plea in the additional affidavit dated 29.5.99 reads  as follows :\n<\/p>\n
     “That with respect to the contents of para No. 9, it is submitted that due to inadvertence the Respondent No. 1 has stated that  he never appointed the Petitioner in his Company. It is categorically stated that the Respondent No. 1 is not running any  business, trade or profession in any manner whatsoever.”\n<\/p>\n
12.  In  this view of the matter it is very clear that the  impugned  Award dated  17.9.1996 cannot stand because the Labour Court has wrongly  applied the judgment of the Bangalore Water Supply Sewarage (supra) in his Award in respect of the test of systematic activity expounded by the Hon’ble Supreme Court. It is significant that the Labour Court itself has recorded a  finding  about the existence of an employer-employee relationship  between  the parties.  There  is no doubt that the petitioner was a part  of  systematic activity  and  worked as a Driver with the respondent No. 1. This  is  also evident  from the other documents brought on record by the petitioner.  The respondent’s lack of bona fide is further clear from the fact in the  first counter affidavit dated 20th July, 1998, the statement was totally  denied. Thereafter  the text of the statement of respondent No. 1 was filed by  the petitioner.  The  stand  thereafter as an afterthought taken  is  that  the
\nstatement was made by inadvertence. Thus it is very clear that the respondent No. 1 has not only made a false averment in his first counter affidavit but the plea was sought to be disowned in the subsequent affidavit. Accordingly  the writ petition is allowed. The impugned Award dated 17.9.1996  is set  aside.  The petitioner is granted reinstatement along with  full  back
\nwages as there is no denial of averment that the petitioner was  unemployed during  the  interregnum.  The amount due under the Award be  paid  to  the petitioner  within  four weeks from today. Since the respondent No.  1  has obviously made clearly false averments on affidavit before this Court,  the petitioner  is entitled to the costs of Rs. 10,000\/- to be paid along  with the amount awarded within four weeks from today.\n<\/p>\n
13.  Accordingly, the petition stands disposed of.\n<\/p>\n
14.  List this matter on 28th January, 2000 for reporting compliance.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Charan Singh vs Ram Kumar Gupta, Contractor & … on 23 December, 1999 Equivalent citations: 2000 IIIAD Delhi 811 Author: M Mudgal Bench: M Mudgal ORDER Mukul Mudgal, J. 1. This writ petition challenges the Award dated 17.9.1996, passed by the Labour Court in ID. No. 575\/91, OLD No. 604\/86. By the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-153644","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nCharan Singh vs Ram Kumar Gupta, Contractor & ... on 23 December, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/charan-singh-vs-ram-kumar-gupta-contractor-on-23-december-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Charan Singh vs Ram Kumar Gupta, Contractor & ... on 23 December, 1999 - 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