Delhi District Court
Sonu Kumar S/O. Sh. Avdesh Shah vs M/S. Mittal Trade Links on 9 July, 2015
Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) No. 183/13
UNIQUE CASE ID No. 02402C0276472013
In the matter of:
Sonu Kumar s/o. Sh. Avdesh Shah
R/o. B350, Gali No. 10, Prem Nagar - II
New Delhi - 110086.
C/o. Bhartiya Engineering and General Mazdoor Union (Regd.),
Bharat Mill Charkhi Gate, Near DBlock,
Karampura, New Delhi - 110015.
...... Workman / Claimant
Vs.
M/s. Mittal Trade Links
47/22, P & T Block, Near Railway Line,
Rajdhani Park, Nangloi, Delhi - 110041 ...... Management
Date of institution : 21.08.2013
Date of reserving for award : 09.07.2015
Date of award : 09.07.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F.3(144)/13/Ref./WD/LAB./1049 dated 08.08.2013, Deputy Labour Commissioner (District West), Labour Department, Government of N.C.T. of Delhi, Delhi made the following reference u/s. 10(1)
(c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F.1/31/616/Estt./2008/7458 dated 3rd March 2009 for adjudication by this Court: "Whether the services of workman Sh. Sonu Kumar S/o Sh. Avdesh Shah have been terminated illegally and/or unjustifiably by the Page 1 to 6 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:09.07.2015 Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13 management; and if so, what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM Workman was working with the management as 'Helper' since last 6 years and his last drawn salary was Rs.4800/ per month. When the workman demanded legal labour facilities, management got enraged / annoyed and with retaliatory feelings terminated the services of workman on 20.11.2012.
Workman prayed for, inter alia, an award in his favour and against the management to direct the management to reinstate the workman with full back wages, continuity of service and all consequential benefits.
3. WRITTEN STATEMENT OF MANAGEMENT Management contested the case of workman by filing its written statement pleading that claim filed by workman Sonu is not maintainable in view of the facts that the workman in the name of Sonu has never worked with the firm of the management at any point of time but one Shri Dhiranjan Kumar S/o. Shri Awdhesh was working with the firm of management whose nick name was Sonu. Workman Shri Dhiranjan Kumar S/o. Shri Awdhesh was working as Helper w.e.f. 09.05.2012 and his last drawn salary was Rs.7254/ per month. Management further pleaded that workman Shri Dhiranjan Kumar @ Sonu had not completed 240 days in the services of the management prior to his alleged date of termination. Management also pleaded that there arose no occasion when the services of claimant were terminated rather he alongwith other workers who were members of the Union had left the employment of the management at his own. At last management prayed for dismissal of the claim of workman Shri Dhiranjan Kumar @ Sonu.
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Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13
4. REJOINDER
Despite opportunity given workman did not file any rejoinder to the WS of the management.
5. ISSUES On 03.02.2015 Court passed the following order: "03.02.2015 Present: None for workman.
Mr. Anjani Kumar Chaudhary Adv. for the management. Previous ordersheet perused. Sufficient opportunities have been given to the workman for seeking corrigendum in the order of reference. Vide order dated 15.04.2015 it was submitted by ARW that workman has applied for corrigendum regarding correction in the name of workman but as yet corrigendum has not been received by the court. Also workman is not appearing before the court since last many dates.
The need for corrigendum had arosen inasmuch as in the order of reference name of workman is mentioned as Sonu Kumar S/o Avdhesh Shah but the management pleaded that workman in the name of Sonu never worked with the management at any point of time and in fact workman Dhiranjan Kumar S/o Sh. Avdhesh was working with the management whose nick name was Sonu. On 04.02.2014, workman submitted that his name is Dhiranjan Kumar S/o Avdhesh. Workman was asked to file documentary proof in this regard but he did not file any such proof. Today ld. counsel for the management submitted that court may proceed with the trial of this case without waiting for corrigendum inasmuch as it may be taken as if management is not disputing the identity, as such, of the workman. According heard on issues. On the basis of material available on judicial record, following issues are framed:
1) Whether the workman completed not less than one year of continuous service with the management so as to comply with the requirement of section 25 F of the Industrial Disputes Act, 1947? OPW
2) In terms of reference to be read keeping in view the averments made by workman in the statement of claim filed before Conciliation Officer/this court. OPW No other issue either arises or pressed for. List of witnesses be filed by both the parties within 15 days. Put up on 26.03.2015 for W.E. Page 3 to 6 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:09.07.2015 Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13 (ANAND SWAROOP AGGARWAL) POLCXI, KKD/ DELHI / 03.02.2015 + Order has been read over and explained to me and I accept the same as true and correct.
Counsel for the management.................."
6. EVIDENCE Workman did not appear to lead his evidence on 26.03.2015 and 06.05.2015. On 06.05.2015 Court has passed the following order: "06.05.2015 Present: Mr. Triyogi Narain for the workman.
It is submitted that workman ceased to be in touch with the union. Union to make efforts to get in touch with workman.
Put up on 09.07.2015 for personal appearance of workman."
On 09.07.2015 none appeared for workman despite several calls since morning till 3.25 p.m. Workman appears to have lost interest in this case. WE closed. In the absence of WE, no ME is required.
7. My ISSUEWISE FINDINGS are as under:
(i) Whether the workman completed not less than one year of continuous service with the management so as to comply with the requirement of section 25 F of the Industrial Disputes Act, 1947? OPW
(ii) In terms of reference - to be read keeping in view the averments made by workman in the statement of claim filed before Conciliation Officer / this court. OPW Both the issues are being taken up together inasmuch workman has not led no evidence.
The Hon'ble High Court of Delhi in case law reported as Tin Box Page 4 to 6 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:09.07.2015 Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13 Company Vs. Inderjit Singh & Ors. 2003 LLR 544 has observed as under:
"5. He has also placed a decision of the Allahabad High Court in Airtech Private Ltd. V. State of Uttar Pradesh & Ors. Reported in 1984 (49) FLR 38, wherein a similar fact situation had arisen. In the said decision, it has been observed that the statement of claim supported by the affidavit of the workman constitute the preliminary evidence and it is upon the Management / employer to controvert the same and if not so controverted then nothing further needs to be proved and done by the workman. However, the primary responsibility of establishing his case rests on the workman. And in that case, the Allahabad High Court held that the Labour Court had patently erred in holding that the burden of proof lay upon the employers. It further held that the obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. The party making the allegation and seeking redressal must seek an opportunity to lead evidence. A similar view was taken by the Division Bench of the said Allahabad High Court in the case of V. K. Raj Industries Vs. Labour Court & Ors. Reported in 1981 (43) FLR 194.
6. Agreeing with the view taken in the said decisions of the Allahabad High Court, I hold that the impugned dated 22nd February, 1989 passed by the Labour Court asking the petitioner to lead evidence first cannot be sustained in law and, I accordingly quash the same. The workman is to lead evidence first as it is he who has to establish his allegations. The matter is remanded to the Labour Court for adjudication as per provisions of law. It is made clear that this court has not expressed its views on the merits of the reference. In these circumstance there shall be no order as to costs."
(underlining by me.) The gist of this case law is that burden of proof lies upon the workman, and not on the management, to lead his evidence at first instance before the Labour Court adjudicating the dispute about termination of his services.
As in this case workman has not discharged the onus to prove his case Page 5 to 6 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:09.07.2015 Sonu Kumar Vs. M/s. Mittal Trade Links ID No. 183/13 as pleaded by him in the statementofclaim, workman can be said to have failed to prove / establish his case on the judicial file. This observation of the Court is sufficient to decide the reference in hand against the workman. In such a circumstance, management is not supposed to prove its stand on the judicial file to rebut the case of the workman.
Accordingly, both the issues is decided against the workman. In view of my above findings, workman is held to be entitled to no relief.
8. Parties to bear their own costs. Reference is answered accordingly.
9. A copy of the award be sent to the Office of the concerned Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 09.07.2015.
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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