Delhi District Court
Sh. Ghabla Sahu vs . M/S. Needle Point Textile Products ... on 31 May, 2013
Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0366442009
Type of Case Direct Industrial Dispute
Date of Institution 14.12.2009
Evidence concluded on 06.05.2013.
Final arguments heard on 23.05.2013
Date of Award 31.05.2013.
WORKMAN Vs. MANAGEMENT
Sh. Ghabla Sahu S/o Sh. Sudam M/s. Needle Point Textile Products
Sahu C/o Hindustan Engineering & Pvt. Limited, Khasra No. 738, 26,
General Mazdoor Union, D - 2/24, Milstone, Ghewara Road, Rohtak
Sultanpuri, New Delhi - 26. Road, New Delhi - 110081.
PRESENT:
None for the parties.
AWARD :-
1. The workman Ghabla Sahu filed this direct industrial dispute before this court U/S
10 (4A) of the Industrial Disputes Act against the Management M/s. Needle Point
Textile Products Private Limited.
2. As per his claim, the claimant workman Ghabla Sahu had been working with the
Management M/s. Incraft Innovation Private Limited as a 'Machine
Man' since 01.01.2002 and his last drawn salary was Rs.3934/ per
month. Thereafter the Management, as per this workman, transferred
him to M/s. Needle Point Textile Products Private Limited in the year
AWARD Page 1 of 12
Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09
2004. he alleged that the Management was not giving him his legal amenities
like ESI, appointment letter, attendance card, PF, earned leaves, casual leaves, 20%
bonus, double over time etc. He started demanding the same. The enraged
Management terminated his services on 01.06.2009 without any reason or notice
to that effect. Thereafter he raised an industrial dispute and brought it before this
court for adjudication.
3. Purportedly a written statement was filed on behalf of the Management with the
preliminary objections including that the name of the Management was M/s.
Needlepointe Textile Products Private Limited. They pleaded that this defect in the
workman's claim was fatel to its maintainability. On merits the Management
pleaded that the workman was appointed by it on 01.04.2004 as a 'Helper' and his
last drawn salary was Rs.3934/ per month. As per the written statement the
workman refused to work with the Management after 13.06.2010 despite repeated
efforts by the respondent / Management urging workman to resume work. It
included those efforts of the Management which it purportedly made before a labour inspector.
4. In this background of pleadings of the parties, this court vide its orders dated 28.10.2010 framed the following issues :
1. Whether the workman had unauthorizedly remained absent from his duties, if yes, from what date and for what period? OPM.
2. Whether the services of the workman were terminated illegally and / or unjustifiably by the Management? OPW.
3. Relief, if any.
5. Thereafter both the parties were asked to lead their evidence. AWARD Page 2 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09
6. The workman Ghabla Sahu examined him as WW1 through his evidence affidavit Ex. WW1/A and almost reiterated his claim in material aspects. He relied upon five documents i.e. Ex. WW1/1 to Ex. WW1/5. The original documents Ex. WW1/1 to Ex. WW1/3 were placed in the judicial file of this case,
7. During his cross - examination the workman admitted to have started his work with the Management 01.04.2004 onwards. During his further cross - examination the Management put a document Ex. WW1/M1x to him. This was a wages register in the establishment of the Management. The workman admitted his name at point A and his signatures at point B on various pages of this photocopies. Thereafter the photocopy of a report of a labour inspector was put to this witness. This witness had admitted that it was a report prepared by a labour inspector Sh. Rakesh Kumar on 16.06.2009 at the Management's premises. A document Ex. WW1/M3x was also put to this witness. It is again a photocopy of a labour inspector's report dated 23.06.2009, but the claimant / workman could not say anything on this report. Thereafter a document Ex. WW1/M4x was put to this witness. This was a reply of the respondent / Management before the Conciliation Officer. A document Ex. WW1/M5x was also placed on record which purportedly is a notice sent by the Management to the workman but the claimant / workman stated that he did not receive that notice. Ld. counsel for the respondent / Management confronted this witness to an application which he filed for resuming his duties. The language of para 4 was brought to the notice of this witness. Thereafter a letter purportedly written by the Management to the claimant /workman was confronted and this was Ex. WW1/M7x and this witness stated that the address written on this document was not his correct address. Thereafter a postal receipt Ex. WW1/M8x was put to this witness.
8. Thereafter, the Management examined one Sh. Kunal Vaid as MW1. This witness relied upon a document Ex. MW1/1 which is a reply filed by the Management in the proceedings before the Conciliation Officer. He stated that he was one of the two Directors of the Management firm with one Smt. Usha Vaid the other Director. He stated that he had not filed any specific resolution of being specifically authorized to pursue tis matter. He also AWARD Page 3 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 relied upon the documents which were put to the workman by the Management during his cross - examination.
9. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop. Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows :
49. "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."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"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."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has been held that "Where a person asserts that he was a workman of 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."
10. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR
851.
11. Limited Vs. PO Labour In Automobile Association of Upper India Court & Anr.
(SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 AWARD Page 4 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.'
12. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non - existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page - 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal burden' was coined by Lord Denning while the AWARD Page 5 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. (1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice. Therefore, any party appearing before anyone of such Authorities must make a claim or demur the claim of the AWARD Page 6 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
13. In the light of this law this court is of the view that the requirement of evidence by the workman and the Management is not simultaneous. It is a primary duty of the claimant to show that at least a prima facie case exists in his favour and thereafter if he succeeds in doing that the Management's evidence would be taken into consideration either in rebuttal or in the establishment of an alternative factual circumstances put forward by it in defence.It is clear that burden of proving facts keeps shifting from one party to the other.
ISSUES NO. 1 & 2 :
14. In these issues this court has to adjudicate upon the factum if the workman had unauthorizedly remained absent from his duties, if yes, from what date and for what period and that if the services of the workman were terminated illegally and or unjustifiably by the Management.
15. As per the workman's claim he initially joined one establishment M/s. Incraft Innovation Private Limited. He attached one subscription slip also to show his employment in that company. But in a particular circumstance when the aforesaid company was not made a party to these proceedings, this court does not deem it fit to speak any word on claimant's relations to that company M/s. Incraft Innovation Private Limited. That aspect is left aside.
16. It is the claimant's case in itself that in the year 2004 he was transferred to the present Management. The Management had also admitted the claimant / workman's employment since 01.04.2004. Therefore, the point regarding the date of appointment is settled by admissions. It was 01.04.2004. The amount of last drawn wages was also not disputed and it was Rs.3934/ per month.
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17. The last day of working is also not in dispute between the parties. The claimant / workman pleaded that he was not alleged to work there in the Management's establishment on 01.06.2009 and the Management hadal so admitted that he worked there till 31.05.2009.
18. Hence at last the only dispute is regarding the mode of termination of services. As per the workman it was a retrenchment and as per the Management it was an unauthorized absence on behalf of the workman.
19. During the course of this adjudication a constant eagerness was observed on the part of the Management. And the same eagerness was reflected in its conduct at the time of recording of evidence between the parties. The Management appeared to be so comprehensive to this approach that it had put even those documents to the workman as a witness which were not even remotely related to him. A reply to the workman's claim before the Conciliation Officer was confronted to him. Similarly a letter dated June 23, 2009 was also put to the witness as Ex. WW1/M5x. This document was purportedly a notice to the workman sent by the Management. But strange enought this document did not show the address of the addressee. The workman moved an application in the court showing his willingness to go and resume his duties. That application was also put to confirm the correctness if that application was in fact moved by the workman in the court. It appears that the Management had not cared about the provisions of Section 114 Illustration 'e' The Indian Evidence Act.
20. For these reasons these efforts of the Management appears to have touched the contours of chicanery.
21. The factual position is very simple. As per law laid down by the Hon'ble High Court in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in case Punjab and Sind Bank Vs. Sakattar Singh (2001) 1 SCC 214 the respondent /Management ought to have held an enquiry in case the workman remained absent and that too remained absent unauthorizedly. But there is neither a pleading nor any evidence by the Management that AWARD Page 8 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 any such enquiry was ever held. As an eye wash a letter Ex. WW1/M5x was placed on record but it does not appear to be a serious document as it did not contain even the address of the addressee. Some photocopies of documents like wages register. Attendance register etc. were confronted to the witness and some affirmative answers were obtained. But this court views the situation differently. In general the workman in this category to which the present workman also belongs are generally illiterate or semi - literate. During the course of their working with the Management which are generally run by resourceful people equipped with expert advice of advocates and Chartered Accounts etc. these workmen give responses to various factual situations of the Management. These responses given by these illiterate or semi - literate workers are generally scrutinized at a subsequent stage by highly skilled professionals during adjudicatory processes. Varying perceptive interpretations and imagined possibilities are shown before the court. The same is being done here in this adjudication.
22. But behind its hyper activity the Management appears to have overlooked its responsibility. It had admitted almost all aspects of the employment of this workman but has not produced, despite all that, a letter of appointment of this workman. It has also not brought on record the detailed service conditions of the workman. These specific failures of the Management coupled with its failure to hold an enquiry against the purported absence of this workman puts a big question mark to the bonafide of the Management. This court gathers that instead of settling disputes with the workman, the Management hyper actively started aligning its documents and evidences after 01.06.2009.
23. Moreover, the workman was working peacefully with the Management earning an amount of monthly salary as admitted between the parties, there appears to be no circumstances explaining claimant workman's eagerness and anxiety to abandon his job without any rhyme or reason. There appears to be no factor which would have led the workman to abandon his duties. Withholding of essential documents e.g. letter of appointment, service conditions etc. by the Management coupled with a forbearance from holding an enquiry for the workman's alleged absence clearly show the intention of the Management. It was disinclined from allowing the claimant / workman to continue in its AWARD Page 9 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 employment. It terminated his services and prepared aligned documents to show that termination an an absence of the workman.
24. His services were terminated by the Management and this termination of service was well covered within the meaning of Section 2 (oo) of the Industrial Disputes Act. Section 2 (oo) reads as follows : Section 2 (oo) Industrial Disputes Act defines the retrenchment as follows : "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
25. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as AWARD Page 10 of 12 Sh. Ghabla Sahu Vs. M/s. Needle Point Textile Products Pvt. Ltd. DID No. 297/09 nullity and the employee is entitled to continue in employment as if his service was not terminated."
26. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
27. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the Management was legally defective. RELIEF :
28. In view of the findings of this court on the issues no. 1 and 2, this court is of the view that compensation amount should be determined after having regard to the date of appointment, the date of termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. inflation and the devaluation of money) and the circumstances in which he was retrenched.
29. Keeping all the aforesaid parameters in view this court is of the view that an amount of Rs.1,00,000/ (Rs. One Lacs Only) as compensation would make the loss good which this claimant had suffered in the hands of the respondent / Management.
30. A copy of this order be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
31. The documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
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30. File be consigned to the record room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 31.05.2013.
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