Delhi District Court
Between vs The on 15 May, 2007
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 702/06
BETWEEN
The Workman
Sh. Ram Vachan Singh S/o Sh. Parshu Ram
C/o Purvanchal Mazdoor Trade Union,
Opp. T-34, Okhla Phase-II,
New Delhi- 110020.
AND
The Management of
M/s. Expoto Uniform,
2 & J, 18, Lajpat Nagar,
Central Market,
New Delhi- 110024.
AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour)
vide reference no. F.24(1019)/2004/Lab.3428-32 dt. 26.07.2004 referred the
dispute for adjudication between the management of M/s. Expoto Uniform
and its workman Sh. Ram Vachan Singh S/o Sh. Parshu Ram in the
following terms of reference:-
"Whether the services of Sh. Ram Vachan Singh S/o Sh.
Parshu Ram have been terminated illegally and/or
unjustifiably by the management and if so, to what
relief is/are, he/they entitled and what directions are
necessary in this respect?"
2. Workman has filed statement of claim stating therein that he has been
employed with the management as Chowkidar since 26.06.1990 and his last
drawn salary was Rs.3800/- per month and workman was working sincerely
and diligently to the satisfaction of management and never gave any chance
of complaint to the management. It is stated that the management was not
providing the legal facilities to the workman i.e. ESIC Card, appointment
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letter, overtime, bonus etc. and the workman was orally demanding the same
from the management on which the management started remaining annoyed
with the workman and forced the workman to submit resignation and the
services of workman were terminated on 17.10.2003 without issuing any
notice or charge sheet and earned wages of workman from 01.10.2003 to
16.10.2003 were also not paid. It is stated that the workman sent notice of
demand to the management, but the management did not send any reply to
the same. It is stated that the workman made complaint to the Labour
Authorities, but despite efforts of Labour Inspector workman was not
reinstated. It is stated that the workman presented his claim before the
Conciliation Officer, but the management did not participate in the conciliation
proceedings. It is prayed that an award be passed thereby reinstating the
workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and
the management has filed WS and has contested the same. In the WS
management has denied that the workman was in the employment of the
management since 26.06.1990 as Chowkidar and his last drawn salary was
Rs.3800/- per month. It is stated that the workman was not working with the
management as regular employee, but he used to work with the management
from time to time as Chowkidar and he used to earn daily wages on working
days whenever he used to attend the management. It is stated that the the
workman used to work with the management at irregular intervals and the
management sells school uniforms and the nature of work of the
management is seasonal and the workman often used to remain absent from
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the market place either he used to visit his native place or the workman used
to work for some other establishments. It is stated that the workman started
coming to the management in the year 1995 and prior to 1995 there used to
be no Chowkidar in the management. It is stated that as the workman was
not regular employee of the management, hence there was no question of
seeking legal benefits by the workman. It is denied that the workman was
performing overtime work. It is stated that the management's timing do not
vary from the market timings which are usually 11:00-11:30 AM to 7:30-8:00
PM and the nature of job of the management does not require any sort of
additional working hours. It is denied that the management terminated the
services of the workman on 17.10.2003 and the earned wages of the
workman from 01.10.2003 to 16.10.2003 were not paid. It is stated that the
workman was not employed with the management and he was not available
for work/duty during October 2003, hence there is no question of removal or
terminating the services of the workman on 17.10.2003. It is denied that the
management has terminated the services of the workman illegally. It is
stated that workman is not entitled to any relief.
4. Workman has filed rejoinder to the written statement of management.
In the rejoinder workman has reiterated the contents of statement of claim
and controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my Ld.
Predecessor on 03.02.2006
1. As per terms of reference.
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6. To prove his case workman examined himself as WW1 and WE was
closed on 18.08.2006.
7. In support of its case management examined Sh. Pawan as MW1 and
ME was closed on 12.04.2007.
8. I have heard Authorised Representatives for both the parties and
carefully perused record. My findings on specific issues are as under:-
ISSUE NO. 1
9. In the statement of claim the workman has stated that he has been
employed with the management since 26.06.1990 as Chowkidar and his last
drawn salary was Rs.3800/- per month and his services were terminated by
management on 17.10.2003 without any notice or charge sheet. In the written
statement management has denied that the workman has been employed
with the management since 26.06.1990 as Chowkidar and his last drawn
salary was Rs.3800/- per month. The management has taken the plea that
workman was not working with the management as a regular employee and
the workman used to come and voluntarily assist the management for various
small piecemeal work and that too at irregular intervals and not regularly, for
which he used to get just amount which was not fixed on hourly basis or daily
basis or monthly basis and the workman had started coming voluntarily to the
management w.e.f. 1995 and not prior to that and the workman also used to
take loan, without any interest, from the management to meet his day to day
needs on returnable basis.
10. The plea of AR for management is that it is for the workman to prove
that there existed relationship of employer and employee between the parties
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and that the workman has worked continuously for 240 days in a year with
the management.
11. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State of
Tamil Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held that:
36. In a given case it may not be possible to infer
that a relationship of employer and employee has
come into being only because some persons had
been more or less continuously working in a
particular premises inasmuch as even in relation
thereto the actual nature of work done by them
coupled with other circumstance would have a role
to play.
38. The control test and the organization test,
therefore, are not the only factors which can be said
to decisive. With a view of elicit the answer, the court
is required to consider several factors which would
have a bearing on the result: (a) who is appointing
authority; (b) who is the pay master; (c) who can
dismiss; (d) how long alternative service lasts; (e)
the extent of control and supervision; (f) the nature
of the job, e.g. whether, it is professional or skilled
work; (g) nature of establishment; (h) the right to
reject.
12. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179 (SC),
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the Hon'ble Supreme Court held that it was then for the claimant to lead-
evidence to show that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only his own statement in
his favour 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.
13. In Rajasthan State Ganganagar S. Miils Ltd. v. State of Rajasthan
and another, 2004 (4) LLN 845; Municipal Corporation, Faridabad v. Siri
Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and Madhya Pradesh
Electricity Board v. Hariram, 2004 (4) LLN 839: 2005 LLR 1 (SC), the
Hon'ble Supreme Court reiterated the principle that burden of proof lies on
the workman to show that he had worked continuously for 240 days in the
preceding one year prior to his alleged retrenchment and it is for the workman
to adduce an evidence apart from examining himself to prove the factum of
his being in employment of the employer.
14. In Surendranagar District Panchayat and Anr. v. Jethabhai
Pitamberbhai, 2006 LLR 250 the Hon'ble Supreme Court held that when the
workman apart from examining himself in support of his contention has not
produced any proof in the form of receipt of salary or wages for 240 days or
record of his appointment or engagement for that year to show that he has
worked with the employer for 240 days to get the benefit under section 25F of
the Industrial Disputes Act, in the absence of evidence on record the Labour
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Court and the High Court have committed an error in law and fact in directing
reinstatement of the respondent-workman.
15. Hence, as per aforesaid decisions it is for the workman to prove that he has been employed with the management for the period as alleged and that his services were illegally terminated by the management.
16. To prove his case workman examined himself as WW1 and adduced evidence by way of affidavit Ex. WW1/A. The workman has relied on copy of the complaint dt. 15.12.2003 made by Purvanchal Mazdoor Trade Union Delhi Pradesh (Regd.) to Assistant Labour Commissioner Ex. WW1/1, copy of notice dt. 05.02.2004 issued by Labour Inspector to Purvanchal Mazdoor Trade Union Delhi Pradesh (Regd.), postal receipt Ex. WW1/3, UPC receipt Ex. WW1/4, copy of demand notice dt. 15.12.2003 Ex. WW1/5 and copy of the claim filed before the Conciliation Officer Ex. WW1/6. Workman/WW1 stated in the cross-examination that he does not have any document to show that he was working with the management since the year 1990 and he was drawing salary of Rs.3800/- per month.
17. Although, as per aforesaid decisions it is for the workman to prove that there existed relationship of employer and employee between the parties and that he has worked continuously for 240 days in preceding one year prior to termination of his services but if the management does not issue any documents to the workman relating to his employment in that case it was held in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 that:
14. Engagement and appointment in service can be established directly by the existence and :8: 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.
18. In Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of :9: termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be-the ground for the tribunal to draw an adverse inference against the management."
19. As per decisions in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. (Supra) and Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi (Supra) it is for the workman to call upon the management to produce the relevant record in order to prove that he has been employed with the management for the period as alleged.
20. It is not disputed that the management is an establishment covered by provisions of Delhi Shops and Establishment Act, 1954. Section 33 of the Delhi Shops and Establishments Act, 1954 casts a duty on the management to keep a record of the hours worked and the amount of leave taken by the :10: employees and to maintain such other records and registers and display such notices as are prescribed by the said Act. Section 34 of the Delhi Shops and Establishments Act, 1954 provides that the employer shall furnish to every employee with a letter of appointment. In the present case the plea of the workman is that the management has not issued any letter of appointment to him and the management was not issuing wages slip or any other document to him. MW1 had stated in cross-examination that the management was not maintaining any attendance record or any other record in respect of services rendered by the workman. As the management was not maintaining any attendance record or any other record in respect of services rendered by workman hence in the circumstance there was no opportunity for workman for making directions to the management to produce the record in respect of services rendered by workman. As the management was not maintaining any record in respect of the management (as stated by MW1 in the cross- examination) hence in the circumstances, there was no opportunity for workman to call upon the management to produce the record in respect of his employment with the management.
21. The management examined Sh. Pawan as MW1 who adduced evidence by way of affidavit Ex. MW1/A. In the affidavit Ex. MW1/A management has stated that the workman used to come and voluntarily assist the management for various small piecemeal work that too at irregular intervals from time to time and not regularly for which he used to get just amount. By stating so in affidavit Ex. MW1/A, the management has admitted that the workman was performing some duty for the management, however :11: the management has taken the plea that the workman was not the regular employee of the management. MW1 stated in cross-examination that management has seasonal work and as and when required the management used to avail the services of workman. MW1 further stated in cross- examination that in the year 2002 about 7/8 regular employees were working with the management. MW1 stated in cross-examination that management was not maintaining any attendance record in respect of the workman as he was not a regular employee and MW1 further stated in cross-examination that management has not maintained any record in respect of services rendered by workman. In the affidavit Ex. MW1/A management has admitted having paid just amount to the workman. The management has not produced any record in order to prove as what amounts were paid by the management to the workman from time to time during the period in which workman has rendered services for the management.
22. In para 1(b) of PO of WS management has stated that no appointment letter was issued to the workman as he was not regular employee of the management. In para 4 of affidavit Ex. MW1/A the management has stated that management used to make payment of just amount to the workman for the services rendered by him but in para 1 of reply on merits in the WS, management has stated that the workman used to work for management from time to time as Chowkidar and he used to earn daily wages for the days he has rendered services for the management. The management has nowhere stated that it has maintained any muster roll which would reflect the number of days for which the workman has worked with the management and :12: at what rate the workman was being paid for doing work on those days. MW1 stated in cross-examination that management has seasonal work and the management used to avail services of workman as and when required. The management has also not proved that in which part of the year the management has seasonal work during which management used to engage services of workman. As per testimony of MW1 the management has not maintained any record in respect of workman and as per the written statement no appointment letter was issued to the workman. The management has relied on Ex. MW1/1 which is receipt dt. 04.05.2000 issued by workman wherein workman has stated that he has already received a sum of Rs.7000/- as advance from the management and on 04.05.2000 he has taken another sum of Rs.3000/- from the management and he will get the same deducted in installments of Rs.500/- per month. It is to be noted that in Ex. MW1/1 it is mentioned by workman that he is working with the management and as per same the workman had already received an advance of Rs.7000/- which he had undertaken to get the same deducted in monthly installments of Rs.500/- and thereafter he took another sum of Rs.3000/- from the management making the total advance to Rs.10000/- which the the workman had to get deducted in monthly installments of Rs.500/- each. Ex. MW1/1 which is the document filed by management itself which proves that the workman had received a sum of Rs.7000/- as advance which he had undertaken to pay by deduction of Rs.500/- per month, which proves that the said amount was to be deducted from the workman by management and the said amount would have been paid in 14 months and after receipt of another sum of Rs.3000/- the entire advance of Rs.10000/- :13: was to be deducted by management from the workman in total 20 months as a sum of Rs.500/- per month was to be deducted by the management. The payment of advance of Rs.10000/- by management to workman in pursuance of Ex. MW1/1 and undertaking of the workman to get the same deducted in 500/- per month shows that the workman was in the employment of management and was receiving salary from the management and on that account the management had agreed to make payment of advance to him and the management was in a position to get a sum of Rs.500/- per month deducted from the salary of the workman and the management would have recovered the entire amount from the workman in 20 months which shows that the workman was working for the management regularly and as the workman was working for the management regularly and on that account the management had made advances to him to be recovered from the workman in subsequent 20 months. Ex. MW1/1 proves that the workman was working continuously for the management and on that account the management had given him advance of the sum of Rs.10000/- to be recovered from the salary of the workman in the next 20 months from the date of execution of Ex. MW1/1.
23. The aforesaid discussions and the evidence adduced on record shows that the workman has been in the employment of management. Although, the workman has taken the plea that he has been in the employment of management since 26.06.1990 but no evidence to this effect has been adduced on record. In the written statement management has stated that the workman has been performing duty for the management since the year 1995. :14: The workman has taken the plea that his services were terminated by the management illegally on 17.10.2003. In the affidavit Ex. MW1/A management has nowhere stated that the services of workman were not terminated by management on 17.10.2003. On the other hand management has taken the plea that as the workman was not in the employment hence there is no question of industrial dispute if the workman does not come for work. The management has not proved that on not reporting by workman for duty it had sent any letter to workman thereby directing him to report for duty or that the management had conducted any enquiry into the unauthorized absence of workman from duty.
24. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both." :15:
25. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
26. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
27. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"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 reaching the age of superannuation if the contract of 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 :16: ill-health.
28. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
29. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
30. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
31. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on :17: reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
32. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
33. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. wherein our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC
633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
34 In J. K. Synthetics Ltd. vs. K. P. Agrawal & Anr., 2007 LLR 358 it was held that:
17. There is also a misconception that wherever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several :18: promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed we may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud, 2003 (2) SCC 212:
2003 LLR 225 (SC); A.P.S.R.T.C. v. Abdul Kareem, 2005 LLR 943: 2005 (6) SCC 36 and R.S.R.T.C. v. Shyam Bihari Lal Gupta, 2005 (7) SCC 406: 2005 LLR 1196 (SC).
18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case............
35. In the statement of claim workman has not stated that he has been unemployed since the date of termination of his services but he has stated that he is entitled to be reinstated alongwith consequential benefits. In his affidavit Ex. WW1/A workman has stated that he is unemployed since the date of termination of his services and he could not find any alternative job despite efforts made by him. Workman has not proved as to what efforts have been made by him for finding alternate job and the workman has also not stated the details of other managements which were visited by him for :19: seeking alternate employment. Admittedly, the workman was working as Chowkidar with the management and the nature of job of the workman is not such that he would not have got any alternate employment during the intervening period of his disengagement from the management. Moreover, this is a case wherein the management has not maintained any record in respect of the workman and the management had denied the relationship of employer and employee with the management. In the circumstances, instead of ordering reinstatement of workman on duty it would be appropriate if the workman is compensated in terms of money. As per aforesaid discussions, the workman has been employed with the management since the year 1995 and his services stood terminated on 17.10.2003. In the circumstances, it will be appropriate if the workman is paid a sum of Rs.40000/-(rupees forty thousand) by management to compensate for all his legal dues i.e. gratuity, notice pay, retrenchment compensation etc. and the workman shall also be entitled to a sum of Rs.5000/- per annum on account of back wages from the date of his disengagement i.e. 17.10.2003. The workman shall also be entitled a sum of Rs.5000/- on account of litigation expenses under Section 11(7) of the I. D. Act. The workman shall be entitled to simple interest @ 8% per annum on the aforesaid amount from the date of this order till realization thereof. Reference stands answered accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 15.05.2007 (HARISH DUDANI) :20: PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI :21: ID 702/06 15.05.2007 Pr. None.
Award dictated and announced separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to record room.
POLC/15.05.2007