Rajpal v. M/S Anil Kumar Malhotra & ANR
$~45 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6149/2016, CM No.25260/2016 RAJPAL ..... Petitioner Through:
Mr. R.P.S. Bhatti, Adv.
versus M/S ANIL KUMAR MALHOTRA & ANR ..... Respondent Through:
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
O R D E R
% 20.07.2016 CM No.25260/2016 Exemption allowed subject to all just exceptions. Application stands disposed of.
W.P.(C) 6149/2016 1.
The challenge in the petition is to the Award dated March 20, 2016, whereby the Industrial Tribunal has answered a reference made by the Appropriate Government against the petitioner herein and dismissed the claim petition. The reference made by the Appropriate Government was on the following terms:- "Whether services of Sh. Raj Pal S/o Tilak Ram have been terminated illegally and/or unjustifiably by the management and if so, to what
sum of money as monetary relief alongwith other consequential benefits in terms of existing Laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2.
It was the case of the petitioner herein that he was working with the Management continuously since 1996 as a „Loader‟ and last wages paid to him were to the tune of Rs. 5,000/- which were less than the minimum rate of wages. He was performing his duties with dedication, but on September 02, 2010, the Management terminated his services, without serving upon him any chargesheet or notice and also without paying him earned wages, for the month of August 2010. It was his case, that on March 11, 2013, he sent a demand notice to the Management with the prayer for reinstatement in service and payment of wages for the month of August 2010, but in vain. 3.
The respondents filed their reply before the Tribunal, wherein they have denied the relationship of employer and employee between the petitioner and them but the respondents had accepted the receipt of demand notice dated March 11, 2013 from the petitioner but pleaded that the same was based on false allegations. They have also stated that the notice was replied to. It is also stated that Indian Railways issued licenses from time to time upto December 2004. However, subsequently, Indian Railways
changed its policy, refused to renew or issue license for the aforesaid work, and rather leased out the Boggies. According to the respondents, they were not allowed license for forwarding and clearing after 2004. It was also stated that, thereafter, they were taking the help of various colleagues for handling loading and unloading, shifting of various parcels and mercantile luggage from platform godown sheds.
4.
On the basis of the pleadings, the Tribunal framed the following three issues:-
1. Whether there existed relationship of employer and employee between the parties? OPW
2. Whether the services of the workman have been illegally and/or unjustifiably terminated by the management? OPW
3. Relief.
5.
The petitioner herein, had in his evidence relied upon eight documents out of which Ex.WW1/7 was de-exhibited and marked as Mark A. Ex.WW1/1 to Ex.WW1/6 are the following documents:- (i) Ex.WW1/1 is a Platform Season Ticket issued in favour of the petitioner as an employee of Sh.Anil Kumar Malhotra, the respondent No.2 at Delhi Station, for the period from May 29, 2000 to December 31, 2000. (ii) The contents of Ex.WW1/2 are not legible and this aspect has been noted by the Tribunal.
(iii) Ex.WW1/3 is platform permit issued to Raj Pal, as labour of licensee forwarding and clearing agent Anil Kumar Malhotra, respondent No.2 for the period January 05, 1999 to December 31, 1999. (iv) Ex.WW1/4 is Platform Season Ticket dated October 13, 2007 issued to the petitioner. It is noted by the Tribunal, so also noted by this Court, the name of the employer does not find mentioned on it. (v) Ex.WW1/5 is another Platform Season Ticket dated April 28, 2004 issued to the petitioner but the name of the employer does not find mentioned on it.
(vi) Ex.WW1/6 is also a Platform Season Ticket dated December 25, 2009, but it does not depict the name of employer/forwarding clearing agent. 6.
The finding of the Tribunal on issue No.1 is that the petitioner has not shown that he is an employee of Anil Kumar Malhotra, the respondent No.2 herein. On this finding, it is the submission of learned counsel for the petitioner that the same is perverse, inasmuch on a perusal of the exhibits, noted above, at least two of which being Ex.WW1/3 and WW1/1 does depict that the petitioner was an employee of Anil Kumar Malhotra. Further, the ld. Counsel for the petitioner would rely on the testimony of WW2 Sh. Jagdish Lal Meena, Chief Parcel Supervisor, Northern Railway,
from whose testimony, it is established that Ex.WW1/1, WW1/3 to 6 were issued by Indian Railways to coolies to have access to the Platform and said documents were issued to the labour of contractors or lease holders and vendors so as to have access to the Platform. He reiterates his submission that the petitioner was an employee of Anil Kumar Malhotra. This submission of the learned counsel for the petitioner is appealing, but it is noted that the said exhibits WW1/3 and WW1/1 relate back to the period May 29, 2000 to December 31, 2000 and January 05, 1999 to December 31, 1999. It is also noted, WW2 Mr. Meena has deposed, the agents, were not appointed after 2004. That apart there is no evidence produced by the petitioner before the Tribunal or in this Court that even after 2004, he was continued to be engaged by Anil Kumar Malhotra, as it was the case of the petitioner that his services were terminated in the year 2010. 7.
That apart, I note, that after the alleged termination in the year 2010, the demand notice was sent in the year 2013, after a period of nine years or three years, surely show the delay on the part of the claimant to make a claim. Even though, the matter has not been looked into from this perspective, this Court is of the view, this would be a relevant factor on the maintainability of the reference before the Tribunal after such a long delay.
It may be stated here that based on the finding against issue No.1, the Tribunal had answered the issue No.2 against the petitioner and dismissed the claim petition. The ultimate conclusion of the Tribunal in dismissing the claim is justified.
8.
I do not see any reason to interfere with the impugned Award. The petition is dismissed.
V. KAMESWAR RAO, J JULY 20, 2016/ak