Delhi District Court
11. In Workmen Of Nilgiri Coop. ... vs . State Of on 20 March, 2008
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI
ID NO. 666/2006
BETWEEN
The Workmen
1. Sh. Hardayal Singh S/o Sh. B.S. Negi &
2. Sh. Rajan Patel S/o Sh. Rudal Singh Patel
C/o General Mazdoor Lal Jhanda Union,
I-441, Karampura,
New Delhi- 110032.
AND
The Management of
M/s Associated Service Station
1, Sham Nath Marg (Ali Pur Road)
Delhi- 110054.
Date of institution of the case : 11.12.2001
Date of reserving the award : 17.03.2008
Date of announcement of award : 20.03.2008
AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour)
vide reference no. F.24(2777)/2001/Lab./24111-15 dt. 23.10.2001 referred the
dispute for adjudication between the Management of M/s Associated Service
Station and its workmen Sh. Hardayal Singh and Rajan Patel in the following
terms of reference:-
"Whether the services of workmen Hardayal Singh and
Rajan Patel have been terminated illegally and/or
unjustifiably by the management, and if so, to what
sum of money as monetary relief along with
consequential benefits in terms of existing laws/Govt.
Notifications and to what other relief are they entitled
and what directions are necessary in this respect?"
Contd.....
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2. The workmen have filed statement of claim stating therein that the
workmen were employed with the management as per particulars furnished
below:-
Name of workman Post Date of appointment Wages
Hardayal Singh Helper 01/03/92 Rs.1500/-
Rajan Patel Helper 27/07/1994 Rs.1500/-
The workmen were working sincerely and diligently and never gave any
chance of complaint to the Management. The Management was not
maintaining service record of the workmen and the management was also not
providing legal facilities i.e appointment letter, bonus, casual leave, ESI and
provident fund etc. and the management was also not making payment of
wages as per minimum wages fixed by appropriate government and on
demand of the same by workmen from the management, the management got
annoyed and terminated the services of the workmen on 02.07.2000 without
issuing any notice or charge-sheet and earned wages of workmen for the
month of June 2000 were also not paid. Workmen sent a notice of demand to
the management on 14.07.2000 but the management did not sent any reply to
the same and the workmen were not reinstated. The management presented
the claim before the conciliation officer but despite efforts of conciliation officer
workmen were not reinstated. It is prayed that award be passed thereby
reinstating the workmen in service alongwith continuity of services with full
back wages.
Contd.....
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3. The notice of statement of claim was issued to the management. The
management has filed W.S. to statement of claim & has contested the same. It
is stated in the WS that workmen never employed by the management as per
detail mentioned in the statement of claim. It is stated that there was no
relationship of employee and employer between the parties and allegations
regarding service and details thereof as furnished by the workmen are totally
false. The name of the workmen never existed on the muster roll of the
management. It is denied that there existed relationship of employee and
employer between the parties. It is also denied that management had obtained
signatures of the workmen on blank papers. It is denied that workmen were
demanding legal facilities and on which management got annoyed and
terminated the services of the workmen on 02.07.2000 as alleged. It is stated
that during the conciliation proceedings the conciliation officer was apprised
about the true facts of the case but he referred the dispute without considering
the contentions of the management. It is stated that workmen are in gainful
employment with some other management and they have filed the statement
of claim against the management in order to harass the management and to
extract money from the management. It is stated that workmen are not
entitled to any benefit.
4. The workmen have filed rejoinder to the written statement of
management. In the rejoinder workmen have reiterated the contents of
statement of claim and have controverted the allegations of management as
stated in the WS.
Contd.....
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5. From the pleadings of the parties following issues were framed by my
ld. predecessor on 31.01.05 :-
1.Whether there existed relationship of employees and employer
between the parties? If so, its effect? OPW
2.As per terms of reference.
6. To prove their case workmen have examined themselves i.e Sh.
Hardayal as WW1 and Sh. Rajan Patel as WW2 .
7. Management examined Sh. Jai Prakash, Manager as MW1.
8. I have heard Authorised Representatives for parties and carefully
perused the record. My findings on specific issues are as under :
ISSUE NO.1
9. In the statement of claim workmen have stated that workman Sh.
Hardayal Singh has been employed with the management from 01.03.1992
as helper and workman Sh. Rajan Patel has been employed with the
management from 27.07.1994 and the management was not providing the
legal facilities and on demand of legal facilities by workmen from the
management, the management got annoyed and terminated their services
illegally on 2.7.2000. In the WS management has taken the plea that both the
workmen namely Sh. Hardayal Singh and Sh. Rajan Patel were never in the
employment with the management and there existed no relationship of
employer and employee between the parties.
10. The plea of AR for management is that it is for the workmen to prove
that there existed relationship of employer and employee between the parties
and that the workmen have worked continuously for 240 days in a year with
the management.
Contd.....
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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),
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
Contd.....
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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
Court and the High Court have committed an error in law and fact in directing
reinstatement of the respondent-workman.
Contd.....
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15. Hence, as per aforesaid decisions it is for the workmen to prove that they have been employed with the management for the periods as alleged and that their services were illegally terminated by the management.
16. To prove their case workmen Sh. Hardayal Singh and Sh. Rajan Patel appeared in witness box as WW1 and WW2 respectively and they adduced evidence by way of affidavits Ex. WW1/A and Ex. WW2/A respectively. The workmen have relied on Ex. WW1/1 to WW1/34 which workmen state are the photocopies of the attendance registers from January 1995 to April 2000. The workmen have also relied on Ex. WW1/35 to WW1/40 which workmen state are the photocopies of the duty rosters. The workmen have relied on copies of letters Ex. WW1/41 to WW1/46 and Ex. WW1/47 which is copy of the demand notice dt. 14.07.2000, postal receipt Ex. WW1/48 and UPC receipt Ex. WW1/49. The workmen have also relied on copy of WS filed by the management before the conciliation officer which is Ex. WW1/50 and copy of rejoinder filed by the workmen before the conciliation officer is Ex. WW1/51.
17. The contention of authorised representative of management is that Ex. WW1/1 to WW1/34 which workmen allege to be copies of attendance registers are fabricated documents and they are not the copies of the attendance registers maintained by the management. In the cross-examination, WW1 and WW2 admitted that Ex. WW1/1 to WW1/34 do not bear the name of the management and they do not bear any signatures of representative of management. WW1 and WW2 further stated in the cross-examination that Contd.....
-8-they used to obtain photocopies of attendance registers every month as the management used to destroy the same on completion of the month. It is to be noted that WW1 Sh. Hardayal Singh and WW2 Sh. Rajan Patel both admitted in the cross-examination that Ex. WW1/1 to WW1/34 do not bear the name of the management and they are not signed by any representative of the management. The workmen have not filed any application in the court for directing the management to produce the Attendance Registers in order to prove the Ex. WW1/1 to WW1/34 are the photocopies of the attendance registers which were maintained by the management. The workmen have not given any suggestion to MW1 also in the cross-examination that Ex. WW1/1 to W1/34 are the photocopies of the attendance registers maintained by the management. The workmen have failed to prove that Ex. WW1/1 to WW1/34 are the copies of the attendance register maintained by the management. The workmen have also relied on Ex. WW1/35 to WW1/40 which the workmen state are the copies of the duty rosters. MW1 was not confronted with Ex. WW1/35 to WW1/40 in his cross-examination in order to prove that Ex. WW1/35 to WW1/40 are copies of duty rosters prepared by the management and they are signed by the officials of the management. Ex. WW1/41 to WW1/46 are also photocopies of letters. The workmen have relied on copies of the letters which they allege to have been received in the name of workman Hardayal Singh at the address of the management and the same are Ex. WW1/41 to WW1/46. Workman Sh. Hardayal Singh/WW1 admitted in the cross-examination that letter Ex. WW1/46 is in the name of Smt. Tara Negi who is his wife. WW1 Hardayal Singh admitted in the cross-examination that Contd.....
-9-Smt. Tara Devi was not in the employment of the management. The letter Ex. WW1/46 bears stamp of date 14.08.2001 of the postal authorities and it bears endorsement of 'not met' of postal authorities dt. 18.08.2001. It is to be noted that workmen have alleged that their services were terminated on 02.07.2000 but the letter Ex. WW1/46 bears the stamp of postal authorities of date 14.08.01. The workmen have not explained that if the services of the workmen were terminated on 02.07.00, then how the letter which bears the stamp of postal authorities dt. 14.08.01 was received by them at the address of the management. Moreover, letter Ex. WW1/41 to WW1/46 can be received by workmen in arrangement with other workmen/employees of the management. The letters Ex. WW1/41 to WW1/46 even do not prove the date of appointment of workmen with the management, the post of the workmen, their last drawn salary and that the workmen have worked continuously for 240 days in a year with the management.
18. The workmen have not adduced any other evidence in the form of receipt of salary or wages for 240 days or record of their appointment or employment to prove that they were in the employment of management for the periods as alleged. The documents filed on record by the workmen do not prove the claim of the workmen that they have been in the employment of the management for the periods as alleged and that they worked continuously for 240 days in a year with the management. The contention of the workmen is that documents produced on record by the management are fabricated. The management examined Sh. Jai Prakash Singh as MW1 who adduced evidence by way of affidavit Ex. MW1/A. The management has relied on Contd.....
-10-muster roll from October 1997 to September 2001 Ex. MW1/1 (collectively) in order to prove that the workmen were not in the employment of the management, hence their names do not figure in the muster roll maintained by the management.
19. In the case of Bank of Baroda vs. Ghemarabhai Harjibhai Rabari, 2005 LLR 443 the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case it would be the responsibility of the Management to rebut the same.
20. Although, it is for the workmen 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 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 Contd...-11-
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.
21. 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 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 Contd...-12-
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."
22. 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.
23. It has been observed above that the workmen have not adduced any evidence in the form of receipt of salary/ or wages for 240 days or record of their appointment or employment to prove that they were in the employment of the management for the periods as alleged. The documents filed on record by the workmen do not prove the relationship of employee and employer between the parties. The workmen have failed to discharge the onus of proving that there existed relationship of employer and employee between the parties. The plea of the authorised representative of workman that the Contd....
-13-documents produced by the management are fabricated also no force as the workmen have not filed any application before the court for directing the management to produce any record maintained by the management, i.e wages record, ESI record, provident fund record etc. in order to prove that the workmen were in the employment of management and the names of the workmen find mention in the said record. Moreover, workmen have not discharged the onus cast upon them to even prima-facie prove that they were in the employment of management, so that thereafter onus can be shifted on the management to rebut the claim of the workmen. The workmen have failed to prove that there existed relationship of employer and employee between the parties. This issue stands answered, accordingly.
ISSUE NO.2
24. In findings on issue no.1 above it has been held that the workmen have failed to prove that there existed relationship of employer and employees between the parties. As there was no relationship of employer and employee between the parties hence, there is no question of termination of services of the workmen illegally and/or unjustifiably by the management. Consequently, the workmen are not entitled to any relief. 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 20.03.2008 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI -14- ID No. 666/06 20.03.2008 Present:- Sh. Hari Om, Advocate for both workmen with both workmen in person.
None for management.
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/20.03.2008